By Bob Hunt, July 10, 2017
Suppose that the roots from your neighbor’s tree have completely ignored property lines and are now well into your backyard and have begun to start cracking your patio. Do you have an absolute right to cut them back to the property line in order to maintain your own property? Not in California.
For guidance, we look to the 1994 case of Booska v. Patel (California First District Court of Appeal, May 20, 1994). In that situation, Steven Booska owned property adjacent to property owned by Ramanbhai Patel. Booska’s land contained a thirty-to forty-year-old Monterey pine tree. The roots of the tree extended well into Patel’s yard.
In May of 1991, Patel hired a contractor “to excavate along the length of his yard and sever the roots of the tree down to a level of approximately three feet.” According to Booska’s complaint, “Patel’s actions were negligently performed, with the result that the tree became unsafe, a nuisance, unable to support life, and was removed at Booska’s expense.” The complaint alleged causes of action for negligence, destruction of timber, and nuisance.
Patel moved for summary judgment — essentially dismissal — “arguing that he had an ‘absolute right’ to sever the roots on his property without regard to any injuries inflicted on Booska’s land.”
The trial court stated that a previous case,Bonde v. Bishop, “provided for an absolute right to sever any roots that enter an adjoining landowner’s property”, and granted the motion for summary judgment. Booska appealed.
The appellate court said that the question framed by the pleadings and declarations “is the single legal issue of whether an adjoining landowner may sever roots from a neighbor’s tree that have encroached on his property even if the action is done negligently or maliciously and even if no damage was caused by the tree.”
The Appellate Court then reasoned as follows: “Patel bases his argument on the common law principle codified in Civil Code section 829 which states that ‘the owner of land has the right to the surface and to everything permanently situated beneath or above it.'” However, the Court said, “Patel apparently does not feel bound by the maxim codified in [Civil Code] section 3514 which states: ‘One must so use his own rights as not to infringe upon the rights of another.”
The Appellate Court wrote that, “The possessor’s [of land] right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.” “The proper test to be applied to the liability of the possessor of land … is whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others…” “Thus, whatever rights Patel has in the management of his own land, those rights are tempered by his duty to act reasonably.”
The Appellate court summed up its discussion by citing a passage from the previously-mentioned Bonde decision: “Apparently this is one of those rows between neighbors in which the defendants are standing on what they erroneously believe to be their strict legal rights to the exclusion of any consideration of the fair, decent, neighborly and legal thing to do.”
The summary judgment was reversed and the case remanded for trial.
This article by Bob Hunt is shared here with his permission. Bob is a talented guy, a real estate broker at San Clemente, CA, a director of the California Association of Realtors®, and is the author of “Real Estate the Ethical Way.”
This information is presented by Harrison K. Long, CA real estate broker CALBRE 01410855, Orange County CA. Attorney member of the CA State Bar Association #69137.
Disclaimer: This is for information only and is not the providing of legal services. If you have a real estate legal situation involving tree roots and your home and property, you should contact an experienced real estate attorney.