May 5, 2008 (Original publish date) • By Dennis Beaver
“Mr. Beaver, I’ve been reading your articles in our paper here in Eureka, and have a question about trees and legal responsibility if someone on adjoining property is injured by one of my trees,” Jessie wrote in an e-mail.
“I live in a rural part of Eureka which was at one time probably forest, later subdivided and turned into a housing development. There are large, magnificent trees everywhere, which is part of the charm of the neighborhood and a problem as well. While mine appear to be healthy and have withstood severe winds, others in the area seem diseased, and some have fallen down in recent storms. My neighbor–an elderly and incredibly cheap person–recently began to complain about my trees, and threatening a lawsuit if something happens.”
“He told me that if someone or something is harmed on his property, that I will be to blame, and that if he makes an insurance claim under his own policy, I have to pay his deductible. Is this correct? What do you suggest be done in this situation to keep from getting into a legal hassle?”
Let’s Get to the Root of the Problem
It’s amazing just how many e-mails I get concerning this very problem. There is a great deal of public confusion and misunderstanding over responsibility from tree related issues. Let’s see if we can clarify it a bit:
First of all, even the most die-hard Sierra Club member will admit that, while lovely, in cities trees can be a huge source of trouble. They drop leaves can destroy fences and driveways, go to war with other trees, and if they really get nasty and decide to fall on someone, it’s not pretty.
California law is a bit confusing where trees are concerned. While, in general, you are permitted to trim a neighbor’s over-hanging branches and roots to the property line, if you do it incorrectly and harm the tree, there can be huge financial consequences. But, if you do not act, and someone is hurt while on your property, you could still get sued!
As so many people now live under the rules of a Homeowner’s Associations, responsibility for the care of trees and shrubs may very well fall to a board comprised of well-intentioned, but sometimes not legally savvy neighbors. I have heard from many families who live in a homeowners association that ignores proper care and maintenance of trees.
“Sometimes boards are reluctant to touch trees because homeowners who like the trees and enjoy the view get really upset. I tell boards that it is critical to use a licensed arborist. Spend the money for competent tree care,” Condominium Law specialist Attorney Tom Fier of San Mateo, California, told me.
“Roots can cause havoc – ruining sidewalks, streets, and you need to determine if it is worth keeping the trees for all the damage which can be caused. If a tree which should have been removed falls down and hurts someone, there will be liability – you can bet on it,” Tom points out.
How to Protect Yourself.
“For your reader, I would advise that he get an arborist to examine his trees. Are they healthy or not? If he advises that certain actions need to be taken, the home owner should do whatever is necessary to protect himself, and his neighbor. He needs to get a written report, along with good photos of the trees, and it is a good idea to provide a copy of everything to his neighbor. Of course duplicates of all of this material need to be kept in a fire-proof place. Additionally, if the reader is found liable, he may have to pay his neighbor’s deductible,” Tom points out.
I agree with Tom. Giving a copy to the neighbor serves two functions: (1) It shows that you have real concern and that you are a good neighbor, and (2) Could easily be enough to discourage an attorney from filing suit, where the report is a good one.
And If a Tree Falls?
“If it is entirely on Owner “A’s” property and falls on “B’s” property, Owner “A” is responsible if he has been negligent. It gets complicated where the trunk of the tree is on the property line. Both neighbors are jointly responsible. The tree then belongs to them in common and both need to care for it, sharing costs and liability,” Tom points out.
Advice to Neighbors with Overhanging Limbs
“Often clients ask if they can just go ahead and start trimming branches or roots, or if they must advise neighbors in writing, beforehand. Always contact the other property owner and advice that you plan to trim the branches or cut the roots, and give this notice early on. If they do not oppose, you can proceed without harming the tree. Remember, if you kill or injure a tree, it can become very expensive, depending upon how big and rare the tree is.”
“With roots, I would hire an arborist, to examine the trees and determine what can be done to prevent further damage, including removing the roots and/or trimming.”
“Take pictures. Document the condition of the property accurately. Note date and time on the picture, perhaps with someone in the photo who can later testify to having been there. Use a tape measure showing the diameter of the root, or branches. If damage occurs to property, photograph and document the damage.”
Tom Fier, is a lawyer in private practice since 1978 specializing in homeowners associations and lectures widely on this area of the law. His website is tomfier.com and his E-mail address Tomfier@tomfier.com
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.