Legal Question in Real Estate Law in California

Tree Root Damage

I have a Montery Pine on my hill, my property. My neighbor informed me this summer that roots from my tree have damaged her patio and foundation. These were all top soil roots that must have taken years to develop and were never cared for until damage was caused. I have no sight into her yard but when called I did the neighborly thing and removed the roots per her request. She hired an arborist that say’s it was mine, I hired an arborist that told me it was not mine (no surface roots showed no my property). A third arborist told me that surface roots do not go up hill (40ft). I now have notification from their retained lawyer with this complaint.

As I understand the law, this neighbor had a responsibility to cut these roots before they could cause damage. If not for her negligence, this real property damage would not have occurred. Where am I missing my responsibility?

Asked on 11/12/07, 10:53 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: Tree Root Damage

Well, your theory is wrong, although if your arborists are right you aren't liable anyway. Your neighbor has the RIGHT to trim invasive roots, but not a DUTY to do so, and hence cannot be contributorily negligent. Indeed, this is not a matter of negligence at all; the tree roots, if they do come from your tree, are a trespass. Trespass and negligence are two different species of tort.

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11/13/07, 12:33 am
Cathy Cowin Law Offices of Cathy Cowin
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Re: Tree Root Damage

Although I typically find Mr. Whipple's comments to be right on target, I disagree in this instance. There is a duty of mitigation or to avoid unnecessary damage. In this case, if your neighbor knew the tree roots were invading and threatening patio damage, which can be implied by the fact that he has asserted that they were protruding the surface and he lived at the property and could observe the slowly developing problem, he not only had a right to remove them from his property, but a duty to prevent the patio damage. That becomes a question of fact. Basically, there is enough room for Mr. Whipple and I to find differences in opinion, so that means there is enough controversy for a lawsuit. The problem that you face is that is wouldn't be fair to have to pay for the other guy's patio if he knew the roots were there, had a right to remove them, and simply chose to allow the damage to occur. On the other hand, if the damage is sufficient for him to take you to court, what are you going to have to pay to prove you are right and what chance is there that he could prevail? After all, if Mr. Whipple would take the position he did in his reply, how does this reflect on the possibility of a similar answer in court? Every case becomes a cost-benefit analysis from this perspective outside of fairness and equity. This would be a great case for a mediator to sit down and help you work out a solution that both you and your neighbor agree upon. Mediation is also more likely to preserve a good relationship since, after all, you're probably going to have to live next to this person for some period of time. Your local Better Business Bureau may have free mediation services (not available at all locations). If the damage is not huge, that might be a great process to approach this problem. In determining what position you will take, consider your BATNA (Best Alternative To Negotiated Outcome), which is the likely result if you don't reach a resolution.

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11/13/07, 11:14 am

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