Western Arborist, Fall 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 he wants legal
representation. Although the lawyer has never handled a "tree case", she has practiced
civil litigation for years and feels confident in her abilities
to fight the good fight. She may even have significant experience in real estate litigation. She
says to herself, "How hard could it be?" After
a year, tens of thousand 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 lawyers do to help our clients obtain quicker more cost
effective results? In California, where trees are aplenty, homes are close
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,
hazard trees causing property damage and/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 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 they actually stop 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 says 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 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 a 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, Inc. (2000) 84 (CA4th 153, 168, citing Henniger
v Dunn (1980) 101 CA3d 858, 865.
In other types of 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 these questions in advance will help you
decide whether to take the case and how best to
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 consultants, there are many more whose only qualification
is that they have a pick-up truck and a chain saw. 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:firstname.lastname@example.org) or
check their online referral database at 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. Here
are just a few examples: Civil Code § 3346 and Code of
Civil Procedure § 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.
In addition, most municipalities have tree ordinances. 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 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 for example, Kucera
v. Lizza (1997) 59 CA4th 1141 (Tiburon view ordinance supports valid police power goal of preserving views and sunlight); Echevarrieta v. City of Rancho Palos Verdes (2001) 86 CA4th 472 (ordering appellant to trim trees for neighbor's view did not violate takings 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 the client's answer will be based on an incorrect understanding of the legalities of ownership or an incorrect understanding of the 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 trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. This gives 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
this conversation 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 the 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 on their properties. 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. (DDC 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 cases that 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 also 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 (www.treelaw.com).
Reprinted from California Lawyer, March 2002