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NEIGHBORS TREE PROBLEMS neighbortree.sdcpm.com.

Kimball,Tirey&St.JohnLLP 

Nuisance Trees 

Jamie Sternberg, Esq. 

Updated May, 2013 

The tree which moves some to tears of joy is in the eyes of others only a green thing that 
stands in the way. . . . -William Blake, 1799, The Letters 

Two neighbors can feel very differently about the same tree. A tree that one property owner 
considers an asset may be a nuisance to his neighbor because of a blocked view, overhanging 
branches or invasive roots. Property owners often call Kimball, Tirey & St. John LLP for 
information about their legal rights and responsibilities when dealing with these issues. 

Before advising clients, it is important that the attorney know where the tree trunk is located. If 
the tree trunk is on the property line, it is known as a "line" tree. Both property owners own line 
trees. (CC §834) Neither owner has the right to cut down a line tree or to remove any portion of 
a line tree extending onto his land without his neighbor's consent, even if the tree is causing 
damage. 

If the tree trunk is not on a boundary line, the tree belongs to the person owning the land where 
the tree trunk is located, even if the branches and/or roots encroach onto his neighbor's land. 

In determining each neighbor's rights and obligations, one should remember the basic rule of 
California law that each person must avoid harming others. This means each neighbor should 
act to avoid harming his neighbor. 

A tree owner must maintain his trees to avoid injury to his neighbor's property. Under some 
circumstances a tree owner can be held liable for damage caused by falling branches and/or 
invasive roots. 

A neighbor damaged by an encroaching tree can use self-help or court assistance. The 
unhappy neighbor can remove encroaching portions of a tree causing damage if removal is 
reasonable under the circumstances. To avoid liability, the tree trimmer should consider whether 
there are less drastic measures he could take to avoid the damage to his property, his 
neighbor's property, the tree, and his neighbor's tree. The neighbor can cut back the tree only to 
the boundary line. 

A person who willfully and maliciously removes a tree without the legal right to do so can be 
held liable for treble damages. (CC §3346, CCP §733) The damages can include elements such 
as diminution in value, loss of aesthetic value and shade, and tree replacement costs. If the 
tree must be replaced, and is so large that a replacement of like size is not available, the 
damages may include the cost of “tree care” for years, until the replacement tree reaches the 
size of the originally damaged or removed tree. The court can also award attorney’s fees. 

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Unless given permission or a court order, a person should not enter onto his neighbor's land to 
trim or remove an offending plant. If the unhappy neighbor doesn't want to remove the 
encroaching portions of the tree himself, he can also file an action to recover damages caused 
by the tree and/or to seek injunctive relief (i.e. a court order requiring his neighbor to take some 
action regarding his tree.) 

A neighbor's tree cannot generally be removed because it blocks a view. In California we do not 
have "view easements" unless specifically granted. View easements, if they exist, are generally 
established through recorded easements or CC & R's. 

Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial 
property owners and managers. This article is for general information purposes only. Laws may have 
changed since this article was published. Before acting, be sure to receive legal advice from our office. If 
you have questions, please contact your local KTS office. For contact information, please visit our 
website: www.kts-law.com. For past Legal Alerts, Questions & Answers, and Legal Articles, please 
consult the resource library section of our website. If you have any questions regarding this article, 
please call Jamie Sternberg at 1-800-574-5587. 

© 2013 Kimball, Tirey and St. John LLP 

 Don’t assume that fence lines are property lines; frequently they aren’t the same. You may need a surveyor to determine the location of the property line, or you may be able to tell based on markers in the sidewalk. "

ALSO SEE BELOW 



Tree Law – All You Need

to Know!

by Dale Alberstone, Esq.

Hello everybody. From 
time to time AOA members 
encounter problems 
with their neighbors’ trees. Frequently, 
the issue is with tree 
limbs which overhang the AOA 
owner’s property. Of course, 
the situation could be reversed 
whereby the branches of the tree 
belonging to the AOA owner 
grow over the neighbor’s land. 

Disputes arise leading to issues 
such as: Who owns the 
tree? Who owns the encroaching 
tree branches? What right does 
a party subjected to “trespassing” 
tree limbs have to cut the 
branches? Other similar questions 
might also arise. 

So to assist AOA members in 
analyzing their own issues, this 
month I am endeavoring to write 
a comprehensive summary of all 
the basic laws which pertain to 
trees. The good news is that they 
can be narrowed down to seven 
fundamental rules. Here they 
are:

Rule No. 1: Trees with 
trunks standing wholly upon 
the land of one owner belong 
exclusively to him, even though 
their roots may grow into the 
land of another. This means 
that a tree - including its branches 
- is owned by the person upon 
whose property the trunk is located. 
The fact that the roots 
may grow under the neighbor's 
property is irrelevant to ownership. 
(Civil Code Section 833.) 
This law has been in effect since 
1872.

Rule No. 2: Trees with 
trunks standing partly on the 
one owner’s land and partly on 
the land of an adjoining owner 
belong to both landowners. In 
other words, two people may 
own the same tree if the trunk 
straddles their boundary line. 
(Civil Code Section 834.) This 
law has also been in effect since 
1872.

Rule No. 3: A neighbor 
may ordinarily cut and remove 
those portions of a tree 
which overhang his property if 
the trunk of the tree is located 
wholly on the property of the 
next-door owner. This third 
rule merits discussion. In most 
areas of property law, it is illegal 
for a person to use “self-help” to 
remedy a situation without first 
obtaining court approval. This 
is particularly true in the context 
of a tenant who fails to pay this 
rent. The landlord is not allowed 


.
to physically dispossess the tenant, but must instead 
obtain a court order through an unlawful detainer 
proceeding.

In the context of trees, Rule No. 3 says that self-
help is permitted in most cases. Generally, a neighbor 
of the owner of a tree may physically lop off 
the branches that cross over his side of the boundary 
line if the trunk of the tree is entirely on the 
other side of the line. In fact, older cases suggest 
that a neighbor has the “absolute right” to cut off 
encroaching limbs “whether they cause damage or 
not.” (See Bond v. Bishop decided in 1952)

However, these days Rule No. 3 may be limited 
by the consideration that if the truncation of 
the overhanging portions of the tree would seriously 
damage or otherwise destroy the remainder 
of the tree, the adjoining owner may be compelled 
to prove that the nuisance or damage caused to his 
property outweighs the value of the tree to the owner. 
(Booska v. Patel, 24 C.A.4th 1786)

Conversely, if the nuisance effect to the adjoining 
property owner is minimal and cutting 
the branches would destroy the tree, the adjoining 
owner would not be allowed to sever the limbs. If 
he did, that person could be liable to the tree owner 
for substantial damages.

Lawyers reading this article should be aware 
that older cases suggest that actual damages might 
have to be suffered before Rule No. 3 is applicable. 
See Grandona vs. Lovdal 70 C.161.

Rule No. 4: Where the trunk of a tree is 
wholly located on the property of another, the 
adjoining owner may not cut any portion of the 
tree which is not on his side of the property line. 
In other words, the adjoining owner may not cross 
or reach over the property line to cut any portion of 
the tree which is not on his side of the boundary. 
If the adjoining owner violates this rule, and the 
cutting is otherwise without lawful authority, the 
person cutting the tree may be liable to the owner 
of the tree for up to triple the amount of damages 
caused by the wrongful cutting. As a corollary to 
this rule, an adjoining owner cannot enter on the 
land where a tree is standing to cut it down. 

If the damage is accidental or based on an innocent 
mistaken belief, damages may be limited 
to double the value of the wrongful cutting. (Civil 
Code Section 3346)

Rule No. 5: Where the trunk of a tree stands 
partly on the land of one owner and partly on 
the land of an adjoining owner, there is only a 
limited right to cut any portion of the tree. The 
law is not particularly clear whether the owner of 
land has a right to cut any portion of a tree if the 
trunk straddles the boundary line of his property 
and that of an adjoining owner. 

Early California cases held that the owner has 
only a qualified right to cut down or trim away 
the part of the tree which extends onto or over 
his land without the consent of the other owner. 
Those cases, which were mostly decided before 
1937, involved boundary trees which constituted a 
windbreak serving to shelter and protect the building 
or property of the other owner. (See Anderson 
vs. Weiland 12 C.A.2d 730.) It is unclear whether 
those cases would be applied today in urban areas 
where trees serve primarily aesthetic, rather than 
functional, purposes.

Rule No. 5 was the subject of the recent California Court of Appeal case entitled Kallis v. Sones 
(208 C.A. 4th 1284). There, the appellate court determined 
that a neighbor who cut down a single 70 
foot tall Aleppo Pine tree straddling the boundary 
line between the two properties was liable to the 
adjacent owner for $107,256.00! The facts of the 
decision were interesting.

Kallis bought his Los Angeles property in 1955. 
His next door neighbor, Sones, purchased his lot in 
1977.

The Pine tree likely started growing on one 
side of the line or the other, the expert witnesses 
believed. Over the years, however, as the tree grew 
and the trunk widened, the tree's trunk came to 
straddle the line. Nothing unusual there.

What made the tree abnormal is that a few feet 
up from its base, the trunk split into two separate, 
but still large trunks. One of those trunks grew 
over the Kallis property and the other grew over 
the Sones property. Each trunk supported a fully 
developed system of branches and limbs above it.

The secondary trunks were distinct and far 
enough apart even at their bases to allow room for a 
metal property line fence to run up and through the 
crotch of the tree.

In 2008, Sones, who became concerned that the 
tree could topple and cause damage, hired a worker 
to cut it down. However, instead of just severing 
the portion of the tree on the Sones side of the property 
line, the laborer sawed off both of the secondary 
trunks, leaving just a large stump in the ground. 
From that remaining stump, one could clearly see 
where each secondary trunk originated and how 
large it was at the base. In fact, both secondary 
trunks measured about 23 inches in diameter. 

Also, about 59% of the trunk was on the Sones' 
side, whereas 41% was of the trunk was on the Kallis 
side.

In 2009, Kallis sued Sones for wrongful cutting 
and removal of the timber.

At trial, Sones admitted to cutting the tree, but 
argued that he should only be responsible for 41% 
of the total value of the tree since Sones owned the 
other 59%. Perhaps that made sense, but it did not 
persuade the judge.

At trial, the Court found that the cost to replace 
the tree was $53,628. It then doubled the amount 
(as allowed pursuant to California Civil Code Section 
3346), and entered judgment against Sones for 
a whopping $107,256!

Sones appealed, but the Court of Appeal affirmed 
the Court's ruling. The appellate court determined 
that there were two alternate measure of 
damages that the trial court could have assessed:

(1) The cost to replace the tree; and 

(2) The reduction in the market value of Kallis’ 
property after the tree was cut as compared with the 
value of the property before it was cut.

Because the trial judge had found that Kallis 
was likely to replant a tree similar in kind to the 
one Sones destroyed, the appellate Justices upheld 
the “cost of replacement” measure of damages as 
the proper approach. (The diminution of the value 
of the real property probably would have been less 
than the replacement cost of the tree. Had the property 
been on the market for sale, it is likely that Kallis 
would have only received damages equal to the 
reduction in the value of his property.)

What AOA Members can learn from the Kallis 
vs. Sones case is that before you chop down a tree 
(or hire someone to do it for you), be certain that it 
is entirely on your own property. In that regard, it 
would be wise to obtain a survey plotting the location 
of the tree if you have any doubt as to which 
side of the property line the trunk is located.

Rule No. 6: Where an adjoining property 
owner threatens to violate any of the foregoing 
rules, the tree owner has a right to ask the 
court for an injunction restraining the adjoining 
owner from improperly cutting his trees. Under 
appropriate circumstances, the Superior Court 
has the power to immediately enjoin any person 
or property owner from cutting or trimming trees 
where serious damage is likely to result. In an 
emergency, an attorney may obtain a restraining order 
from the court in one or two days. Good, clear 
color photographs taken of the trees will assist the 
judge in making a determination as to whether or 
not to grant the injunction. A professional survey 
of the property showing the location of the trees 
relative to the boundary line would also be helpful. 


Rule No. 7: Where a tree is wrongfully cut, 
the owner of the tree may recover the cost to re place the tree or the diminution in the market 
value of his property, whichever the Court believes would be the most fair.

The judicial system allows an aggrieved party to 
recover a monetary amount if a neighbor destroys 
an owner’s tree. In general the damages which may 
be awarded are either the cost to replace the tree or 
the reduction in the market value of the tree owner’s 
property as a result of the tree being destroyed. The 
Court is empowered to award the fairer of the two 
amounts. 

Generally speaking, for wrongful injury to a 
tree the measure of damages is three times the sum 
that would compensate the tree owner for his actual 
detriment. However, where the “cutter” had 
probable cause to believe that the land on which he 
cut the tree was his own land, the amount of damages 
is twice the sum that would compensate for the 
actual detriment. Finally, if the person cutting the 
tree was relying on a survey prepared by a licensed 
surveyor, then the damages are the actual damages, 
rather than a multiple of them. (Civil Code Section 
3346) The statute of limitations for filing an action 
for damages for injury to a tree is four years from 
the date of the wrongful act. (id.)

CONCLUDING REMARKS

So there you have it - all the basic tree laws 
which exist in California. What is important to bear 
in mind is that before cutting someone else’s encroaching 
branches, be sure to weigh the nuisance 
effect on you versus the damage it will cause to the 
owner’s trees. Under modern law, our Courts typically 
will apply a “reasonableness” test to the tree 
trimmer’s actions. If found to be unreasonable, the 
trimmer will be liable for substantial damages, as in 
the Kallis v. Sones case.

NOTE TO ATTORNEYS: The statutory laws 
concerning trees are codified under Civil Code Sections 
660, 833, 834 and 3346, C.C.P. Section 733 and 
734, Government Code Sections 25635 and 40401 
and Penal Code Sections 384a and 622 (which make 
it a crime to harm trees on another’s land). 

Dale Alberstone is a prominent litigation and 
transactional real estate attorney who has specialized 
in real property law for the past 39 years. He 
has been appointed to periodically serve as a judge 
pro tem of the Los Angeles Superior Court and is a 
former arbitrator for the American Arbitration Association. 
He also testifies as an expert witness for 
and against other attorneys who have been accused 
of legal malpractice.


The foregoing article was authored in October 
2015. It is intended as a general overview of the 
law and may not apply to the reader’s particular 
case. Readers are cautioned to consult an advisor 
of their own selection with respect to any particular 
situation.

Questions of a general nature are warmly invited. 
Address correspondence to Dale S. Alberstone, 
Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue 
of the Stars, Suite 650, Los Angeles, California 
90067. Phone: (310) 277-7300.