Tree Dispute Between Neighbors
- Owner Who Intentionally Erects Fence and Trims Neighbor’s Trees Without Consent Cannot Use Homeowners Insurance to Protect Him/Her From Liability.
In the case of Albert vs. Mid Century Insurance, 236 Cal App 4th 1281, Albert (Owner) bought a homeowners insurance policy from Mid Century. Albert decides to build an encroaching fence, without first having the lot surveyed, between her yard and the neighbor’s yard. For good measure Owner hired a contractor to prune nine mature olive trees, which turned out to be wholly on the neighbor’s lot. Naturally the neighbor sued Owner for all damages occurring to the trees and for erecting the encroaching fence.
Owner tenders the claim to her homeowners insurance company for her defense. Homeowners insurance company declines to provide a defense and is successful on a Motion for Summary Judgment filed against the Owner. The Superior Court Judge found that there was a lack of coverage for the Owner’s actions under the policy and that the insurance company owed no duty to defend Owner.
On appeal the Court of Appeal affirmed the trial court’s Judgment. The policy specifically excludes “intentional acts”. The exclusion of “intentional acts” applies even if an insured mistakenly believes he or she has the right to engage in certain conduct. An intentional act cannot be an accident. It does not matter whether the damage that resulted from the intentional action was anticipated or not, if the act that generated the damage was intentional, then the act itself cannot be seen as accidental. Because the building of the fence and pruning of the trees was no accident, the Owner was unable to defeat the company’s Motion for Summary Judgment.
Owner tried to be the bully of the neighborhood and got stuffed. Thinking that the homeowners insurance policy provides defense for all the Owner’s bad acts was a bit aggressive. The policy is an insurance contract which most homeowners never read much less understand what it covers and what it doesn’t cover. A simple phone call to your insurance agent to discuss the meaning of the policy regarding what it covers and what it doesn’t cover could be a smart move. One should also consider personal umbrella coverage and commercial umbrella coverage if you own a building more than four units.
About the Author
Scott Souders is a real estate attorney who has practiced real estate law in excess of 42 years in Southern California. The Real Estate Law Update cites cases or statutes which are summarized and should not be relied upon without fully reading the cases or statute in the advance sheets and shepardizing the same and consulting with your own attorney.