Legal Question in Real Estate Law in California

For the past 10 years I have battled with our neighbors to trim their palm trees as they were laden with dead fronds from the years of growth. This neglect ultimately cost us the life of our dog due to it being a haven for coyotes, damage to our cars due to the infestation of rats living in the trees, and an overall violation of LA county fire codes, as well as interference with the peace as enjoyment of our back yard as they prevented us from achieving a view which they blocked. In California there is a law “spite fence” which states that an overly tall fence, or structure (including trees or hedges) in the nature of a fence, constructed or planted between adjacent lots by a property owner who desires to annoy a neighbor is illegal. Over the years they would call the police on us numerous occasions whenever my husband and I attempted to clean this area. She told many of the neighbors we were peeping toms etc. Earlier this this they sold their house, while they were in escrow, my husband and I attempted once again to trim the trees as we believed we were given permission by way of a tree trimming company who was doing work on their property. Half way thru the job of trimming the trees, they showed up to the property and again called the police. This time she pressured the police to press charges of vandalism and trespassing of which the police did. My husband and I are now dealing with the criminal matter. It appears the CA is looking to get rid of this matter through a civil compromise. We would have to pay them $2,400.00. This is outrageous as the house sold and there are no damages, just some phony bill for $2,000.00 for an aborist. It appears this is the only way we can make this case go away, and this is to pay them off. "money buys you justice" Anyway, being that I am probably going to settle this in this manner, would this preclude me from seeking damages on my own, in small claims based on Civil Code 841.1 Further, Civil Code 3502 allows an injured person the right to abate a nuisance as well as Civil Code 3503 which allows the person the right to enter upon "his land", with reasonable notice. I feel I have a tremendous case against them just based on civil code 841.1. However, does the criminal complaint foreclose me from any further action against these malicious people?

Thank you,

Asked on 6/08/13, 12:26 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

First, let me clear up one item in your question. The spite fence law is Civil Code section 841.4, not 841.1. Next, trees and hedges might not fall under the definition of "fences or other structures" and hence, as far as I know, CC 841.4 does not usually apply to trees. However, there is one case, Wilson v. Handley (2002) 97 Cal.App.4th 1301, where the Court of Appeal did hold that a row of trees planted parallel to the property line could, in certain circumstances, fall under CC 841.4. I suggest you look up that case on line or at your county law library and study its facts and the court's reasoning, which is likely to control the law applicable to your situation. Finally, note that Civil Code section 3502 requires that (private) abatement of a nuisance requires that it can be done without a breach of the peace. Cases I have seen interpreting CC 3502 and trees all involve cutting the invasive roots or overhanging limbs at the property line. I suspect that any entry into the neighbor's property would be deemed a breach of the peace, at least if the property entered were occupied and not abandoned. So, caution is advised. See, e.g., Shevlin v. Johnston (1922) 56 Cal.App. 563 and Stevens v. Moon (1921) 54 Cal.App. 737, both involving self-help in similar nuisance cases.

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Answered on 6/08/13, 1:41 pm

Anthony Roach Law Office of Anthony A. Roach

You have asked a criminal defense question and posted it in the real estate category, then added a lot of background information that is not germane to your question. That is why Mr. Whipple did not answer your question as you have posed it. I agree with his assessment of the real estate law, and I think you are in the wrong, but you should have posted this in criminal defense.

I'll answer your criminal defense question here, since I practice both criminal defense and real estate law.

Under the civil compromise statute, the trial court, in its discretion, is empowered to compromise certain misdemeanor offenses when a civil remedy is available to the victim, the victim acknowledges before the court that he has received satisfaction for the injury, and costs are paid. (See Penal Code sections 1377 and 1378.)

The civil compromise does not bar a civil lawsuit, but I fail to see what civil lawsuit you would have against the neighbors, and it seems to me you are headed for more trouble. I urge you to retain a criminal defense attorney in your criminal matter.

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Answered on 6/13/13, 12:30 pm

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