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San Francisco, CA. Neighbor's fence is falling apart, and…

San Francisco, CA. Neighbor's fence...
San Francisco, CA. Neighbor's fence is falling apart, and several branches of their tree are hanging over into my yard. What are my options to correct these two situations? Heard I can hire a contractor to cut the overhanging branches, and then somehow make the neighbor pay for it? If so, how? And am I required to notify the neighbor? I also heard that I had to notify the neighbor at least twice before actually hiring a contractor to correct the problems. Is this true?What's the correct way to handle these two situations, and is a work permit required? If so. I've asked the neighbor twice to fix the situations. Instead, they did cut the branches, but only on their side. And every time they use the fence to reach higher areas on the tree, pieces of the fencing fall off and into my backyard. I suspect that if I had to get their permission for a work permit so that I could get the work done, the neighbor(s) would simply not sign their permission.
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Answered in 18 minutes by:
10/26/2017
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 9,006
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Your neighbors branches are encroaching and your neighbor should be trimming the encroaching branches. As far as the fence is concerned the neighbor needs to take care of this situation. You can file an injunction against the neighbor where the court orders the removal of the fence.

The only issue with you trimming the branches is if you harm the tree you could be liable. This is where the law gets a little odd in my opinion. Please give me a few moments to provide you with CA law.

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"A neighbor’s trees, branches or roots are encroaching into your property. Do you have the absolute right to cut or remove those branches from your property? Surprisingly, the answer is “No.”

In the 1994 case of Booska v. Patel, a California appellate court held that a neighbor does not have the absolute right to cut encroaching roots and branches so that they end at his or her property line. You must take into account the health of the tree before you start cutting or chopping.

In this case, the appellate court held that a neighbor must act reasonably when pruning encroaching roots and branches...

If a neighbor’s tree branches or roots encroach on your property, what should you do? One solution is to informally and kindly ask your neighbor to trim his own tree in the manner necessary to keep it from encroaching into your property. This approach shifts the risk of damage to the tree owner.

If the neighbor does not cooperate, you (yourself or through an attorney) might send a certified mail letter to the neighbor placing them on NOTICE that a dangerous condition is present concerning the trees, and, that if the tree causes any personal injury or property damage occurs to your property, your neighbor will be legally responsible to pay for all damages incurred. And again, request that they trim the trees to stop the encroachment.

Again, if you do decide to trim the trees or cut the roots yourself, be careful and cautious because, if a court finds that you negligently damaged the neighbor’s tree, you can be held liable for damages."

http://www.legal-news-california.tozerlaw.com/tree_law_california.html

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You also have a nuisance case against the neighbor for both the tree branches and fence issues. http://www.yourlegalcorner.com/articles.asp?id=78&%3Bcat=estate

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This link sets out an overview and all of the governing law http://www.stimmel-law.com/en/articles/encroaching-trees-who-has-right-do-what

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Customer reply replied 9 months ago
Should I assume that the same rules apply if I hire a licensed landscape person to cut the branches, such that the branches do not cross onto my property? In other words, would the licensed landscaping person be liable for any damages to the adjacent neighbor's tree. AND CAN I CHARGE THIS TO THE NEIGHBOR--by any legal method? Same applies to the fence.The frame is intact, but the fencing boards are coming undone? If I cannot hire a contractor myself (after suitable notification to my neighbor), can I wedge wooden planters onto the top of the fence--wedging them onto the frame and between my shed at one end and my home at the other? AND I took measurements: the neighbor's fence seems to be on my property--not the tree, but certainly the fence. Do I have this right to keep the fence boards snug by wedging planters onto the fencing framework and at each end, wedging the planters between my shed and my home?The fence stands 6' high. The planters would be snug, and wouldn't be fixed--with nailing or any kind--but would make the fence seem a couple of feet higher (just not actually fixed in any way with nailing)>

"Should I assume that the same rules apply if I hire a licensed landscape person to cut the branches, such that the branches do not cross onto my property? In other words, would the licensed landscaping person be liable for any damages to the adjacent neighbor's tree. AND CAN I CHARGE THIS TO THE NEIGHBOR--by any legal method? Same applies to the fence." Yes, you are correct the same rules apply if you hire a licensed person to cut the branches. Yes, you can charge the neighbor and hopefully the neighbor would reimburse you. The best alternative is to send the neighbor a letter certified mail return receipt requested letting the neighbor know that if the situation with the fence and the tree are not rectified to your satisfaction you will be pursue a court order. If the neighbor violates the court order they would be in contempt of court.

The frame is intact, but the fencing boards are coming undone? If I cannot hire a contractor myself (after suitable notification to my neighbor), can I wedge wooden planters onto the top of the fence--wedging them onto the frame and between my shed at one end and my home at the other? AND I took measurements: the neighbor's fence seems to be on my property--not the tree, but certainly the fence. Do I have this right to keep the fence boards snug by wedging planters onto the fencing framework and at each end, wedging the planters between my shed and my home?

The fence stands 6' high. The planters would be snug, and wouldn't be fixed--with nailing or any kind--but would make the fence seem a couple of feet higher (just not actually fixed in any way with nailing)>
Any issues with the fence should be addressed with the Planning Department. I will provide the link below.

The issue with the fence is if it is the neighbors personal property you would only be able to pick up debris from the fence on your property. I understand that this fence is a nuisance and needs to be repaired. You would include this in your certified letter and seek a court order to force the neighbor to rectify the situation and reimburse you for any and all damages you have sustained or continue to sustain until you get this resolved.

I can provide a link for a local Attorney that provides FREE consultations as sometimes just a letter from an Attorney is enough to motivate a neighbor to take the right action.

The condition of the fence may also be a violation in your municipality.

Have you contacted the Planning Department that deals with fences? This is the link to contact the Department http://sf-planning.org/fences-residential

This is a link for local Attorneys that provide FREE consultations http://lawyers-beta.findlaw.com/lawyer/firm/land-use-zoning/san-francisco/california

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Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you. If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund. You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out. Thank you for your consideration.
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Customer reply replied 9 months ago
Sorry for taking so long to read your references, but I have one seemingly confusing issue regarding the 1994 case of Booska v. Patel, a California appellate court. "In this case, the appellate court held that a neighbor must act reasonably when pruning encroaching roots and branches..." What is "reasonably when pruning encroaching roots and branches..."? You also go on to say that if the neighbor continues to ignor the requests, which they have, then we can file a nuisance case.So what would be reasonable--legal action or taking the chance of not hurting the tree or fence?

This is the law:

"Neighbor Self-Help. A neighboring owner may cut any encroaching branches or roots up to the boundary line as long as he does so in a reasonable manner that does not cause harm to the tree. (Booska v. Patel (1994) 24 Cal. App. 4th 1786, 1790-1791, adjoining owner may cut back encroaching growth but cannot do so in a manner that causes foreseeable damage to the tree or another’s property; Bonde v. Bishop (1952) 112 Cal. App. 2d 1, 5-6, adjoining owner may remove limbs or roots of a neighboring tree that extends upon his property up to the boundary line). Aside from the self-help method of cutting any offending branches or roots, the adjoining owner may also seek damages or injunctive relief if the encroaching branches or roots cause injury to his property...

Nuisance. Even though the neighboring property has sustained no injury by the overhanging limb, branches and roots that intrude onto the property of another are considered a nuisance and your neighbor may abate the nuisance by cutting the offending branches and roots at the boundary line--so long as he acts reasonably not to seriously damage your tree. (Civ. Code §3346.)"

Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil…So, it would seem, he may have abated the roots projecting into his soil, at least if he has suffered actual damage thereby. (Grandona v. Lovdal, (1886) 70 Cal. 161, 162.)

...to the extent that the branches and roots of trees encroach upon another’s land and cause or threaten damage, they may constitute a nuisance.” (Lussier v San Lorenzo Valley Water District, (1988) 206 Cal. App. 3d 92, 102 n.5.)" https://www.davis-stirling.com/Main-Index/Falling-Branches

The bot***** *****ne is that if you damage the tree you will pay for the tree. Due to the fact that you or your landscaper could inadvertently injure the tree and be you would be responsible it is preferable to have the owner of the tree take care of the issue. You would send a certified letter return receipt requested and give the neighbor so many days to rectify the situation or you will file an action for nuisance against the neighbor. I would not touch the fence or the tree.

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If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund. Thank you.

Attyadvisor
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Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
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Customer reply replied 9 months ago
Thanx
Thank you.
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