The care of trees creates a lot of work for arborists, which is not surprising. However, many attorneys have also put food on their tables thanks to trees and their various related issues. Few things spark tensions between neighbors as quickly as a dispute related to a beloved tree. Unfortunately, there is a good bit of confusion as to what rights a homeowner has when it comes to trimming a tree that sits on an adjoining property.
Today, a commonly cited (but incorrect) rule relates to tree roots and branches that extend over the property line from a neighboring property. While California law formerly provided that an adjacent landowner whose property was damaged by encroaching roots and branches could cut those branches or roots at the property line so long as they did not enter the neighbor’s property, that rule was substantially changed by a notable 1994 case (Booska v. Patel, First Dist., Div. 1, Case No. A061749, May 20, 1994). Now, homeowners must take into consideration the health of the tree and act reasonably. In other words, homeowners may be opening themselves up to liability if they aggressively shear a tree’s roots and branches at the property line.
In Booska, there was a large tree with its trunk entirely on one property and roots that extended under a fence into the adjacent property. The adjacent property owner cut all of the roots at the property line to a depth of three feet. The other homeowner then removed the entire tree and claimed it had become unsafe and a nuisance as a result of the root severance. Relying upon the pre-1994 case law, the defendant claimed he had an absolute right to remove any encroaching roots or branches irrespective of the effect on the tree owner. The court disagreed, stating that no one “is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result” and that the proper test to be applied to the liability of the defendant is “whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others.”
In the post-Booska world, we are left with less than 100% clarity. Most real estate attorneys agree that homeowners may still cut branches and roots at the property line without the neighbor’s permission; however, they must not act in a way that unreasonably interferes with the tree’s health or the tree owner’s rights. Unfortunately, inconsistent interpretations of what is “reasonable” could lead to many disputes. Thus, homeowners may benefit from coming to an agreement with the neighbors before undertaking the work. Additionally, before doing the work, one should consult with an arborist and obtain a written opinion stating that the work will not threaten the health of the tree.