By: Michael Kerbs
As the old saying goes, “you can’t pick your neighbors.” In Southern California where property is a valuable commodity, it is common for adjoining properties to be close in proximity. One issue that is relatively common due to the lack of significant distance between neighbors is the responsibilities of property owners when a tree is located on or near the boundary that separates the properties.
In California, in the situation where the trunk of a tree is entirely on one property, but there are roots or branches that cross over on to the adjoining property, there are restrictions on the actions available to the adjoining property owner. Ordinarily, when the roots of a tree from one property grow into the land of the adjoining property, the neighboring property owner has the right to cut the roots. However, there is an exception when cutting the roots kills or injures the tree. In Booska v. Patel (1994) 24 Cal.App.4th 1786, the court held that there is no absolute privilege for cutting the roots when the result causes damage to or kills the tree and therefore the party that injures the tree is responsible for the damage caused to the tree.
Another set of possible issues is involved when the tree is located on the boundary and is growing on both properties. Under Civil Code Section 834, trees whose trunks stand partly on the property of two or more owners belong to them in common. Neither owner is free to cut down the tree without the consent of the other. Also, neither property owner is entitled to trim or cut away part of the tree if it causes injury to the tree. (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278.)
Lastly, in the December 2020 case of Russell v. Man, the Court addressed the issue of whether a property owner can be held responsible for treble damages under Civil Code section 3346, and Code of Civil Procedure section 733, if actions taken entirely on their own property cause damage to a tree located on an adjoining property. As set forth in these statutes, for injuries to trees, the measure of damages is three times the value of the tree. Russell involved two adjoining properties in Big Bear and a mature pine tree that was located entirely on the plaintiff’s property, with roots growing in part on the defendant’s property. The defendant dug trenches on his property and the trenching activity caused the pine tree to die. The trial court entered an award of treble damages against the defendant for three times the value of the tree. The Court of Appeal in Russell reversed the award of treble damages, holding that both Civil Code section 3346(a) and Code of Civil Procedure section 773 require an actual trespass onto the plaintiff’s property to support an award of treble damages. Because all of the activity that caused the tree to die occurred on the defendant’s property, there was no trespass and thus treble damages were not recoverable by the plaintiff. The same result was reached in the recent California Supreme Court decision of Scholes v. Lambrith Trucking Co. (2020) 8Cal.5th 1094.
In summary, all property owners should act with care when deciding whether or not to trim a tree that is situated in whole or in part on an adjoining property.