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I have a rear neighbor, whose tree roots have crept under…

I have a rear neighbor...
I have a rear neighbor, whose tree roots have crept under dividing rear fence -raising fence & roots have continued under one of my metal sheds- both buckling 3 rows of paver flooring, raised rear and one side of shed aprx 3 inches off the paver foundation and root is continuing to the sheds front opening. I now have two miniature trees growing up inside off this root, and a baby possums is now leaving me poop inside. So i have a ruined floor, causing a trip and fall danger, shed is raised off foundation, trees starting inside, and another large root is growing between mentioned shed and a second shed, inches from that flooring -and is working its way towards my garage foundation.
I have approached owner twice since 10/17, showed pics of roots and damage and he does NOTHING.
I would like to take him to small claims court for what it is going to cost me to remove these roots and make my property "whole" again.
Can you advise me of any and all civil codes I will need to proceed please?
I only know of CC3479. I hope court can order him to remove tree, its ugly and doesnt provide any shade -just damage.Thank you so much for your time
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Answered in 4 minutes by:
3/7/2018
Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 103,583
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. There is no specific course of action is proposed and no attorney-client relationship or privilege formed within this conversation. (You may also be offered a phone call, but those don’t come from me and are offered by the website and you are under no obligation to accept.)

I am sorry to hear about your situation. This is actually not uncommon and is known as the "neighbor's tree" problem in many a law school tort classes. California's Courts have weighed in on the issue as well in numerous opinions. One that sets the doctrine (arguably) is below:

"The trial court followed the defendant's contention that an action would not lie for the reason that plaintiff had the right personally to cut off the offending roots. The reviewing court, however, pointed out that the evidence showed that the roots were noxious because they ruined the plaintiff's soil and under the authority of section 3479, Civil Code, defining a nuisance and section 731, Code of Civil Procedure, permitting a party to bring an action to abate a private nuisance, ordered the trial court to grant an injunction and damages. Grandona v. Lovdal, 70 Cal. 161 [11 P. 623], held that a complaint alleging that an encroaching tree constituted a nuisance and was causing damage, stated a cause of action in a private action for the abatement of the encroachment, saying (p. 162): '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.' (Wood on Nuisances, sec. 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. McDonald, 16 Serg. & R. 390. Bonde v. Bishop, 112 Cal. App. 2d 1 - Cal: Court of Appeal 1952.

In short the opinion follows the widely accepted doctrine which states the following (and also aptly sums up your unwritten question):

What options do I have?

1 - One has the right to either (a) sever any specific tree roots that are trespassing on one's property AND sue for reasonable costs on doing so and damages to your property; or, (b) one may sue for trespass/nuisance and then get the cost and permission to cut in judgment.

2 - the cutting has to be reasonable in order not to damage the offending tree(s) anymore than necessary.

Who is responsible for the costs associated with repair and replacement of the damaged wall and tree removal?

They are, provided you can show that the cost was reasonable and the action was necessary. This may be done post facto (i.e. after the matter was done, and you file for costs), or, before doing so.

What must or should I do if they refuse the trees whose roots that are going to grow into my property in the future?

If the tree roots are not yet on your side, then the viable option is to SUE, or threaten to do so, unless they take appropriate action to stop damage to your property.

Let me know if you need a sample 'cease and desist' letter which may help to take care of the matter without perhaps litigation being necessary.

"I STRIVE FOR FIVE!" My goal is to answer your question to your satisfaction. Please rate with five stars (★★★★★) and click SEND. It does not cost anything extra to rate. You may need to scroll left/right/up/down to see these stars. Rating my answer the bottom two stars or failing to submit the rating reflects poorly on me, even if my answer is correct. If you are not satisfied for whatever reason, or, have follow up questions, please simply reply with SEND before or after rating and let's continue to chat until you are satisfied. This is what I am here for.

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Customer reply replied 4 months ago
Thank you, ***** ***** I do a "cease and desist letter, can I ask for him to re think removing this tree, since problems are most likely to continue, keep "growing" and I will go after him each time for damages.
It is weird, 1 week after second approach to owners, I got a call from a "family friend" telling me to arrange a tree cutter to come on their property , get the tree/stump removed and they would reimburse me. I refused, saying that's their job, their responsibility and wanted nothing coming back on me. When i said no, you could tell they wern"t happy.
This is rental property and they have several.
In 10/16 they actually started cutting tree down, saw it wrapped in wires and left it.

Thank you,

You are welcome.

and if I do a "cease and desist letter, can I ask for him to re think removing this tree, since problems are most likely to continue, keep "growing" and I will go after him each time for damages.

Yes. A cease and desist can be a demand letter, i.e. move the tree and/or pay for damages, or else...

It is weird, 1 week after second approach to owners, I got a call from a "family friend" telling me to arrange a tree cutter to come on their property , get the tree/stump removed and they would reimburse me. I refused, saying that's their job, their responsibility and wanted nothing coming back on me. When i said no, you could tell they wern"t happy.
This is rental property and they have several.
In 10/16 they actually started cutting tree down, saw it wrapped in wires and left it.

All that is interesting but honestly, it does not change the situation nor the answer. It is their trees' roots on your property. Period.

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

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Customer reply replied 4 months ago
Thanks again, If you can provide the cease/ desist letter, greatly appreciated.

Sure.

Dear ___________,

This correspondence is in regards ***** ***** [describe specifically the issue] that is currently damaging my property.

I am hoping that you will be kind enough to engage in a dialogue with me to rectify this matter, because my property is being damaged as a result. Specifically, I am requesting that you

(1) amend the potting of the trees in a way that it does not harm my property; and
(2) reimburse me $____ for the damage already caused.

I am willing to work with you on this matter. However, if this matter is not resolved, or, if you do not respond to this certified letter within ___ days of your receipt of it, I will assume that you do not wish to work with me on this issue.

As such, I may have no choice but to seek relief in Court under an action for under California Code of Civil Procedure Section 731 et seq, seeking an injunction and costs, as is described in Bonde v. Bishop, 112 Cal. App. 2d 1 - Cal: Court of Appeal 1952.

Please reply or contact me within ____ by my address or telephone at _____.

Sincerely,

Signature

Name

Kind Reminder: Please, use SEND button to keep chatting, or please rate positively and click SEND to submit your rating once satisfied. You may always ask follow ups at no charge before or after rating. "I STRIVE FOR FIVE!"

Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 103,583
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Verified
Ely and 87 other Real Estate Law Specialists are ready to help you
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Customer reply replied 4 months ago
Thank you, ***** ***** best!

No problem. Good luck.

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Customer reply replied 4 months ago
Quick question, in the sample cease/desist letter, #1 Speaks of the "potting" of the trees. This is a tree planted in ground, not a pot, so would this be the correct language?
Thank you again.

Hello again. To be specific, one can simply use "planting" instead. That works fine. There are no "magic" words, so common phrases are fine.

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Customer reply replied 4 months ago
Thank you. One last question, after going to small claims court, IF I were to lose on any case, can i still refile in civil court regarding same matter w/ an attorney ?
Thank you again, and have a peaceful day.

My sincere apologies for the wait. Yes. However, you mean appeal. And yes. A loss in small claims court can be automatically appealed to Superior Court de novo (meaning the whole thing is heard anew), and one does not have to use an attorney unless one is a corporation.

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Customer reply replied 4 months ago
Where is your office pleasr, if I should ever need an attorney beyond Ask Service.
Thanks Again!

My apologies for the very late reply. Truth is, a relative was in the hospital so I've been somewhat preoccupied. Thank you for your kind words. Experts cannot take customers as clients, but I thank you for your trust in me and wish you the best in this matter.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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