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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10237
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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My neighbor says the roots of my tree is ruining her flower

Customer Question

My neighbor says the roots of my tree is ruining her flower bed. Also she says it's ruining the fence. The tree does not even touch the fence. Nor does it hang over like her plum tree does with fruit all in our yard. She never once told me verbally. She is upset about something what it is that she wants no one parking I front of her house. The problem for her is it belongs to the city. My kids have to park there sometimes be use other people park in front of our house. To me no big deal. To her it is a big deal. So now she sends me this letter from a lawyer about my tree. I need to respond in ten days.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.
Dear Customer, thank you for using our service. I would like to assist you today. Responses may have a short delay for review and research.
Your neighbor is acting unreasonably. With regard to parking - you, and your guests, can park on a public street (even in front of your neighbor's home) so long as you do not violate the city's parking laws. (this is a public street, she doesn't have a right to control it).
With regard to the tree roots, she does not have a right to "cut or chop" the tree roots - tree roots are given much more leeway than branches, and can only be restricted if they are causing "actual damage" see:
Tree Roots and Damage To My Pipes.
Although adjoining landowners have almost an unfettered right to trim encroaching limbs, branches and foliage, that is not the case with tree roots. If roots encroach under adjacent property, you can sever the roots but only if the roots are in fact causing damage and then only if done reasonably (which may mean by a professional). If the tree roots of an adjoining landowner do in fact cause damage and the encroached upon landowner acts reasonably to sever the roots causing damage, the owner of the encroaching tree is liable for the actual out-of-pocket expenses incurred as a direct result of his tree's encroaching roots.
However, If the adjoining landowner negligently severs tree roots and in turn seriously injures, or kills, a tree the owner of the tree may sue. In Booska v. Patel, 24 Cal. App. 4th 1786 (1994), the plaintiff claimed his neighbor negligently cut the roots of his tree which in turn necessitated the tree's removal. The neighbor claimed he had an "absolute right" to cut the tree roots any way he wanted (in this case 3 feet deep) because they were uprooting his driveway. The Appellate Court disagreed and held that a homeowner's right to manage his own land must be "tempered by his duty to act reasonably."
Landowners should also note that the mere encroachment of tree roots onto your property does not give you the unfettered right to trim. To have the legal right to sever roots, the roots must be causing actual damage.

Source: http://www.yourlegalcorner.com/articles.asp?ID=78&cat=estate (This is also probably one of the better summaries of neighbor issues to help you address this letter that you received from your neighbor's attorney with the 10 day demand.)
(A quick side note - I see 10 day demands occasionally from attorneys or law firms that specialize in sending out demand letters, they exist as pre-paid legal services or similar legal assistance, that don't actually practice law locally, and their clients can get a demand letter for $25 or $50 to send to someone, they are often high on rhetoric and light on substance - so it pays to do a little background check on the attorney that sent you the letter to see who you are dealing with - you can research attorneys in California using the state bar website www.calbar.ca.gov and a private directory www.avvo.com)

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