Tree Law: MCLE Self-Study
California Lawyer Magazine, March 2002

by Barri Kaplan Bonapart

It is a familiar story. A client comes into a lawyer's office complaining that his neighbor has just hacked his trees without his permission, and wants legal representation. Although the lawyer has never handled a "tree case," she has practiced civil litigation for years, maybe even real estate litigation, and feels confident in her abilities to fight the good fight. She says to herself, "How hard could it be?" But after one year, tens of thousands of dollars in legal fees, and a very disappointed client, the lawyer tells herself that she won't ever handle another tree case.

What went wrong? Why are tree cases so thorny? What can we as lawyers do to help their clients obtain quicker more cost-effective results? In California, where trees are plentiful, homes are in close proximity to each other, and homeowners often have a disproportionate sense of entitlement, the number and variety of tree disputes are enormous. Whether the issue is one of trees blocking views, roots lifting driveways, trees causing property damage or personal injury, trees dropping debris, or acts of vandalism against trees, it is important not to underestimate the complexities of the dispute when initially deciding whether to take the case and how to get the best result.

1. Get to the root of the problem. Tree problems usually fall under the heading of neighbor disputes, which tend to be rancourous and even downright nasty. It is not unusual, therefore, for the client walking through your door to be angry and distraught. For many anxious clients this will be their first foray into the legal world.

After listening to the client's story, it may be tempting to launch into giving advice and concocting solutions to their "problem." After all, that is what we as lawyers do best. Slow down and beware. It is important first to find out what the client wants to achieve. This may be the first time he or she actually stops to think about it. Because our judicial system is limited in the kind of remedies it can provide, it is important to know whether the client's objectives are reasonable. Beware of clients who say they want retribution, retaliation, or even respect. If, after exploration, the client's expectations do not match your repertoire of remedies, declining representation will be the best thing you can do for both of you.

2. Consult an expert on damages and liability. Ordinarily in civil cases we do not think of retaining expert witnesses until well into the case. With certain kinds of tree cases, however, it may be appropriate to retain a qualified consulting arborist before even deciding whether to take the case. For example, in the case of the neighbor who cut your client's trees without permission, liability may be clear - but what are the damages? You may think the trees do not have much value, but it turns out that more than $50,000 worth of damage was done. Conversely, you may assume that a particular tree has great value, but it turns out that, because of its species, condition, or location, it barely qualifies for small claims court. Whatever the tree's value, keep in mind that "[c]ourts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered." Hassoldt v. Patrick Media Group (2000) 84 CA4th 153, 168 citing Heninger v. Dunn (1980) 101 CA3d 858, 865. In other types of tree disputes, the damages may be clear but liability may be a question. For example, in a case concerning a hazardous tree smashing a house or car, did the tree fall because of something the tree owner knew or should have known about the tree? Knowing the answers to such questions in advance will help you decide whether to take the case, and how best to proceed.

Do not confuse a certified arborist with a consulting arborist. Anyone who passes the test administered by the International Society of Arboriculture, the trade organization for the arboricultural industry, may become a certified arborist. While there are many certified arborists who may be qualified to serve as a consultant, there are many more whose only qualification is that they have a pick-up truck and a chainsaw. There is nothing inherent about being a certified arborist which prepares the arborist for performing forensic work or valuation of damages. A consulting arborist with forensic training, regardless of "certification," is the appropriate expert to look at questions of causation and valuation. To find a qualified consulting arborist in your area, contact the American Society of Consulting Arborists in Rockville, Maryland at (301) 947-0483 (e-mail: asca@mgmtsol.com) or check their online referral database at http://www.ascaconsultants.org. You could also consult a local attorney specializing in tree disputes for recommendations.

3. Know your statutes and ordinances. State statutes regarding trees span six codes. In addition, most municipalities have tree ordinances. Here are just a few examples: Civil Code section 3346 and Code of Civil Procedure section 733 provide mandatory doubling (with certain exceptions) and discretionary trebling of damages for wrongful injury to trees and vegetation. They also provide a five year statute of limitations. Penal Code sections 384a and 622 make it a crime to harm or remove trees or plants on land not your own, which is punishable by a fine of up to $1,000 and imprisonment in jail up to six months.

Many communities have "heritage tree" ordinances that govern the type of trees that can be cut or removed, even by the property owner. Protected trees are often defined by size, age, or species. There is little uniformity in these ordinances, and one community's heritage tree can be another community's undesirable species. For example, the city of Mill Valley, known for its majestic redwoods, protects redwood trees of a certain size, while the city of Sausalito, known for its majestic views, lists redwoods as an undesirable tree because it is a fast and tall-growing species. The city of Novato defines a heritage tree as anything larger than 24 inches in diameter (75 inches in circumference) regardless of the species.

Although there is no common law right to a view in California (See Wolford v. Thomas (1987) 190 CA3d 347, 358-359), some properties are subject to a view easement. Many towns have adopted view ordinances, and courts have agreed that advancing aesthetic values is a legitimate exercise of police powers. But do not look for uniformity in these ordinances either. Each one has its own requirements regarding how the ordinance is applied, what views are protected, the factors to be balanced, and the alternative dispute resolution requirements, if any, to be pursued. If drafted correctly, such ordinances pass constitutional muster. See e.g., Kucera v. Lizza (1997) 59 CA4th 1141 (Tiburon view ordinance supports valid police power goal of preserving views and sunlight); and Echevarrieta v. City of Rancho Palos Verdes (2001) 86 CA4th 472 (ordering appellant to trim trees for neighbor's view did not violate taking clause).

Remember to ask whether the property in question is located in a planned development or governed by a homeowners' association. There may be contractual covenants, conditions and restrictions (CC&R's) regarding trees and views that apply. Another complication can arise if solar panels are being blocked, if that is contrary to ordinance or agreement.

4. Who owns the trees? This seems like an obvious question. And it is certainly a critical piece of information. However, asking your client this question is just the beginning of the inquiry. Often times client's will be based either on an incorrect understanding of the legalities of ownership or an incorrect understanding of their property lines. Civil Code section 833 provides that a tree whose trunk stands wholly on the land owned belongs exclusively to that owner. So you must determine where in relation to the property line the trunk meets the ground, regardless of where the roots or branches grow. Civil Code section 834 provides that a tree whose trunk stands partly on the land of two or more coterminous owners belong to them in common. This will give rise to joint rights and responsibilities.

People often assume that the property line is the fence line. While this assumption may be correct, if there is any doubt about ownership, a line survey should be ordered at the beginning of your representation.

5. Don't shoot first and ask questions later. One of the first questions I ask my clients is whether they have spoken to the other side about their concerns. I am always surprised by the number of times the answer is no. Because your client will continue to live next door to these neighbors for some period of time (maybe even the rest of their lives), it is important to find ways of preserving that relationship. Although sending the "lawyer letter" may make the client feel good in the short term, it can do irreparable damage. Encourage the client to personally contact the neighbor to talk about the problem. It may turn out that the neighbor was unaware of the problem and may be quite willing to accommodate your client in some way that is satisfactory to both sides. You can help set up the client for success by role playing with your client.

6. It's not about the trees. Very often disputes about trees have their genesis in something completely different. Perhaps your clients did not invite the neighbor to their daughter's wedding; or the neighbor, an older person who has lived there for 40 years, does not like being told what to do by your twenty-something clients who moved in six months ago; or perhaps your clients angered the neighbor by challenging a remodeling or construction project five years earlier. Getting beneath the parties' positions to their needs will often reveal the keys to a mutually agreeable solution.

7. Insurance considerations. Insurance may play a role in resolving tree disputes. If your client's property is damaged by a neighbor's tree, your client's homeowner's policy should cover the damage to the house, other structures, vehicles, trees, plants, pavement, walkways, drives, furniture and personal belongings. The tree owner's policy may also provide coverage under the liability portion of the policy. Carriers will try to avoid damage claims caused by falling trees by claiming they do not cover "acts of God." However, this defense is extremely difficult to establish. It requires an event so unusual in its proportions that it could not be anticipated. See Mattos v. Mattos (1958) 162 CA2d 41 (windstorm was not of sufficient intensity to be "act of God."). And even in such an event, the defendant will not be relieved of liability if his or her own negligence contributed to the damage.

Where trees have been cut or vandalized, a tree owner's insurance usually covers damage to your trees up to a certain dollar amount. Many policies pay up to $500 a tree or 5 percent of the total property value. The tree cutter's insurance may also provide coverage unless the carrier determines that the cutter acted "intentionally".

8. Discourage self help. A common assumption is that people have an absolute right to cut offending branches or roots that encroach onto their property. This assumption should have been dispelled in 1994 when an appellate court held that there is no absolute right to sever encroaching roots; rather, the test is one of reasonableness. Booska v. Patel, 24 CA4th 1786. Thus a landowner's right to remove the portions of a tree that encroach on his or her land must be balanced against the obligations to act reasonably toward adjoining landowners and to refrain from causing foreseeable injury to neighboring property. California Civil Practice, Real Property Litigation § 11:42 (West, 2001). A landowner is responsible "for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury on himself." CC § 1714. See also CC § 3514 (general obligations to others).

9. The expanding duty of care. When establishing liability for damage caused by trees, ownership is a starting point but not the end of the inquiry. Other potentially responsible parties include those who possess the land on which the trees grow or exercise control over the trees. For example, maintaining trees, even if they are not yours, may be sufficient to give rise to a duty of care to others.

The landmark case of Husovsky v. U. S. (D.C. 1978) 590 F2d 944, involved a motorist who was badly hurt when a tree limb, weighing nearly ten tons, fell onto his car. The tree was located on embassy land in Washington, D.C., owned by the government of India, and subject to an agreement that amounted to an easement for the benefit of the United States. The land was controlled and maintained by the federal government and was indistinguishable from the contiguous national park. The road through the park was jointly maintained by the District of Columbia and the National Park Service. The court found that the United States, whose duty it was to maintain and service the park, owed a duty of reasonable care to avert hazards that could be dangerous to passing motorists.

California has been making its own forays into this expansion. In 1997, the State Supreme Court affirmed the possibility of a duty owed by a landlord to a tenant who was injured on land not owned by the landlord by stepping in a broken or uncovered utility meter box that was located in a narrow strip of city-owned lawn in front of the landlord's property. The landlord had sometimes mown the lawn prior to the incident, and he had built a fence around the entire lawn, including the city-owned portion, after the incident. The landlord argued that no duty was owed since he did not own the strip of land, nor did he exercise any control over the meter box. Although the trial court agreed, the Supreme Court found in a 4-to-3 decision that the evidence of mowing and fence building presented a triable issue of fact regarding whether this type of maintenance could constitute sufficient control to give rise to a duty. Alcaraz v. Vece (1997) 14 C4th 1149. The court noted, "[t]he 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 man in view of the probability of injury to others. This duty to maintain land in one's possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control." 14 C4th at 1156.

Although evidence of maintenance of adjacent property is relevant to the issue of control, mere "neighborly maintenance" of a sidewalk planting strip --even tree trimming and gardening-- in front of a residence does not create a duty to a pedestrian who trips and falls there. Contreras v. Anderson (1997) 59 CA4th 188. The critical question is whether the adjoining landowner took action to preclude or limit the actual owner's control of its own property. A landowner who has control over the cause and repair of a defect in a sidewalk does have a duty to warn pedestrians or repair the defect. Alpert v Villa Romano Homeowners Ass'n (2000) 81 CA4th 1320.

10. Promote the Golden Rule. Clients sometimes need to be reminded to treat their neighbor as they would like to be treated. While there are those cases that will find resolution only before a judge or jury, in general it is in your client's best interest to avoid escalating neighbor disputes into litigation. Explain to your clients that court victories can be largely Pyrrhic, won at excessive monetary, emotional, and social cost. The lawyer who can solve problems through creative alternatives to litigation performs a service not only for the client but for the community at large.

Barri Kaplan Bonapart is a Marin County-based attorney, consultant, judge pro tem, and third party neutral specializing in tree and neighbor law. Her articles and biographical information can be viewed on her web site at www.treelaw.com.

Reprinted with permission from the March 2002 issue of California Lawyer magazine.