BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Trees and Neighbors
“Leaves and branches and roots, oh my!”
Q: I represent a buyer in escrow on a single family home. There is a large tree next to the driveway that overhangs the driveway and yard by about 15 feet. There are no other trees nearby. The home inspector’s report states that roots from this tree are causing the driveway concrete to crack and buckle. Also, seller disclosed that leaves and twigs from this tree clog the gutters on the garage, the sewer line needs to be cleared of intruding roots on a regular basis, and branches drop on the driveway and yard during high winds. My buyer says he will just close escrow and cut down the tree. I think that the tree is clearly on the neighbor’s property. Can he just cut it down?
A. If the tree were entirely on the subject property, then your buyer could cut it down. If it is on the neighbor’s property, which it appears to be, or if it is on the property line, he can’t just cut it down. (If you don’t know where the property line is, only a survey will determine that fact.) Let’s assume that you are correct and the tree is on the neighbor’s property.
The law recognizes three remedies for overhanging branches and intruding roots: self-help, damages, and injunctions.
1. SELF HELP: Self-help is basically any remedial action which one takes without first seeking a court order or judgment. The law prohibits an owner from entering onto another person's land to cut down a tree, even when the tree is causing actual property damage. You not only run the risk of monetary liability for trespass and property damage, but the court can triple those damages upon a showing that your action was “wrongful” or “without lawful authority.”
An owner can, however, cut branches and roots of a neighbor’s tree which overhang or are on his property, back to the boundary line. This is also true even for branches and roots which cause no damage. But, in so doing your buyer must act reasonably and with due consideration to the rights of his neighbor's property – the tree. If the trimming or root cutting is done in a way that kills or damages the tree, your buyer could be liable to the neighbor for that damage.
2. DAMAGES: Another remedy is to seek monetary recovery for any damage or expense actually incurred. However, there are some limitations on the ability of an adjoining landowner to recover damages from a “mere encroachment.” In one famous court case, tree branches overhung the neighbor's property by 25 feet and broken branches clogged gutters and drain spouts. The neighbor was allowed to trim the tree but was not allowed to collect for damages.
OPTIONS: A plaintiff can recover up to $10,000 in damages in Small Claims Court. If the loss exceeds $10,000, the dispute will most likely have to be resolved in Superior Court. Your client and neighbor could also agree to take the matter to arbitration or mediation.
3. INJUNCTION: Finally, your buyer may be able to obtain an injunction (a type of court order) forcing the neighbor to remedy the problem. For example, a court could order the neighbor to remove the tree, construct a barrier, or take some similar action to terminate the intrusion of his tree’s branches and roots. The neighbor’s failure to comply with the injunction could subject him to penalties.
It is important to remember, however, that like an action for monetary damages, an action seeking an injunction must be supported by a showing of actual damage. In other words, your buyer must establish not only that the neighbor is guilty of a nuisance – an obstruction to the free use of his property which interferes with his comfortable enjoyment of it – but also show some actual damages.
Here, it seems that your buyer has some damages in the form of a cracked driveway and ongoing sewer line maintenance. Your buyer has the right to cut back these roots and trim the overhanging branches, so long as the tree itself is not damaged. The monetary damages that your buyer could seek to recover could include the cost of trimming back the branches; digging up and removing the roots causing the damage; and then replacing the sewer line and driveway concrete.
So, your buyer has to choose between the three available options and remedies.
PRACTICE TIPS:
1. Because this involves the legal rights of your buyer versus his neighbor, you should recommend in writing that your buyer discuss these options with a knowledgeable real estate attorney prior to removing his inspection contingencies.
2. A tree expert should be consulted as well prior to removal of contingencies to determine how much trimming and root cutting can be done without damaging the health of the tree.
3. Suggest that buyer obtain a survey if buyer is unsure of the actual property line.
This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
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