In Litigation, Real Estate
  1. Tree Law

    Trees with trunks standing entirely on the property of one owner belong exclusively to that owner even though the roots may grow into the adjoining owner’s property. See Civil Code Section 833. This means that the tree and its branches are owned by the person upon whose property the trunk is located even though the roots go onto the neighbor’s property.

    If a tree trunk straddles two properties then the adjoining owners both own thetree. See Civil Code Section 834.

    Where the tree trunk is on one owner’s property the adjoining owner may not cut any portion of the tree which is not on his side of the property line. If the adjoining owner violates this rule and crosses over onto the property where the tree trunk is and cuts any portion of the tree that owner may be liable for up to three times the amount of damages caused by the wrongful cutting.

    If owner accidentally cuts a neighbor’s tree in mistaken belief that he is authorized to do so than damages may only be limited to double of the value of the wrongful cutting. See Civil Code Section 3346.

    An adjoining owner may ordinarily cut and remove those portions of the tree which overhang on his property even if the trunk of the tree is located on the next door neighbor’s property. In other words, a neighbor may remove the branches and/or any overhang of a tree that crosses over on his side of the boundary line. See Bond vs. Bishop.

    However, rule #4 may be limited if cutting overhanging portions of the tree would seriously damage or otherwise destroy the remainder of the tree, such as killing it. Then it would be up to a trier of fact/judge to determine if the adjoining land owner could prove that the nuisance or damage caused by the overhanging trees is outweighed by the value of the tree that is killed. See Booska vs. Patel, 24 Cal App 4th 1756.

    Where the trunk of the tree stands partly on the land of one owner and partly on the land of another owner there is only a limited right to cut any portion of the tree.

    Penal Code Sections 384(a) and 622 make it a crime to harm trees on another’s land. In addition, California’s spite fence statute (Civil Code Section 841.4) declares that any “fence or other structure in the nature of a fence” that unnecessarily exceeds ten feet in height and is maliciously erected or maintained for the purpose of annoying a neighbor is a private nuisance.

    This code section was enacted after the case of Wilson vs. Handley, when Wilson began building a two story log home and the neighbor, Handley, decided to plant a row of evergreen trees along the property line in order to block Wilson’s view of Mount Shasta. Wilson filed a lawsuit to require Handley to remove the trees. Handley maintained the trees were neither a fence nor a “structure”. Therefore, not subject to the spite fence statute.

    The Court of Appeal determined that the meaning of “structure” in the statute includes a row of trees which are planted in the nature of a fence. Therefore, property owners should think about growing trees that exceed ten feet in height along the boundary line that could potentially fall within California Spite Fence Law if their planted and/or maintained for the purpose of annoying a neighbor.

About the Author

  • Scott Souders
    Scott Souders Attorney & 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.

Recommended Posts