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  1. #1
    Join Date
    Aug 2013
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    3

    Default Neighbor's Trees Destroying Fence on Property Line

    My question involves real estate located in the State of: California

    Hi -
    8 years ago we bought a house in a tract neighborhood built in the 1960s. Each house has fences on three sides, on the property lines. A portion of the fence on the west side of our house is falling (the rest of the fence is sound). It has been falling for 3 years due to the neighbor's trees. We spoke to the neighbor 3 years ago and she refused to do anything about the trees. Instead she suggested we place metal braces on our side of the fence. We declined, as the portion of fence that is falling is right at the front entrance to our house. The fence has since become worse, as you would expect. We just moved away from CA and rented our house to a very nice couple. The neighbor approached the couple and told them she, her son, and her insurance agent were worried about the fence. She told them we said we would install the metal braces three years ago, but still hadn't. She asked them if they would install the metal braces. I called the neighbor and told her nothing had changed since we spoke about the fence three years ago: once she's ready to deal with the trees we can talk about how to repair/replace the fence. She said she will not do anything about the trees. In the two weeks following that call, two contractors have been out to see the fence. Both told her there is no doubt the trees are causing the problems and they must be removed and the stumps ground before anything is done to fix the fence. I understand that under Civil Code 841 both neighbors are responsible for maintenance of a fence that's on the lot line. My questions are:
    1. Since it is her trees that are causing the structural damage to this portion of the fence (negligence?), are we still responsible?
    2. Is there any way to "force" her (legally) to deal with the trees?

    Any/all advice is appreciated!
    Thanks!

  2. #2
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: Neighbor's Trees Destroying Fence on Property Line

    All she needed to do was wait until the base grew over the property line to make it partially your responsibility. Now the fun part begins. You can trim the tree or a root, without her permission, as long as it is does not kill the tree. Many trees in CA are considered in part public property and you need a permit to remove them. You can go to court in an attempt to force a joint action to remove the tree, assuming you do not need or obtain a permit. You could also proactively remove the tree and be likely sued for damaging what appears to be, in part, her property. I do not suggest you do anything, if you cannot obtain her agreement, until you have a property survey done to confirm ownership of the tree.

  3. #3
    Join Date
    Aug 2013
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    3

    Default Re: Neighbor's Trees Destroying Fence on Property Line

    The trees are well on her side of the property and they are hers - no doubt about that. Not sure what a "joint action to remove the tree" means...

    The roots go in both directions. The only part I could trim is the branches hanging over the fence on my side, of which there are none. The damage to the fence is already done. The only way to stop additional damage is to remove the tree and ground the stump. The trees are Privets. The arborist said unless they are completely removed/ground, they will just grow back and destroy a new fence or "helper posts." I don't want to cut or kill anything on her property nor would I ever remove a tree from someone else's property (that's just craziness). She is the one concerned about the fence, as she has a pool right there next to the trees (which are apparently destroying the pool deck too). I want to know what I am responsible for with regard the the fence, as the damage has been caused by neglect and the rest of the fence is fine. I'd also like to know what she is responsible for when the fence finally falls down. Doesn't the fact that she isn't taking care of her yard matter? The fence would be fine if not for her trees...surely this matters?!?!

  4. #4
    Join Date
    Sep 2011
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    OH10
    Posts
    17,019

    Default Re: Neighbor's Trees Destroying Fence on Property Line

    I apologize for some reason I thought your post suggested the base of the tree had grown over the property line as the tree matured. The obvious question is why did you not initially take action to trim and periodically re-trim the root(s) on your property approaching the fence when you noticed the problem? It seems your negligence has created the problem that is now present.

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,568

    Default Re: Neighbor's Trees Destroying Fence on Property Line

    The fence would be fine if not for her trees...surely this matters?!?!
    Yes; what matters is that the trunks of the trees are still entirely on her property. That means that you are not tenants in common as to the trees.

    Hopefully our helpful California surveyor and fence expert, eapls, will be able to give his input on your situation. He is much better qualified to comment on your question than I am.

  6. #6
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    395

    Default Re: Neighbor's Trees Destroying Fence on Property Line

    First off, I must have missed the part where you had trimmed roots and where that is the cause of the trees impacting the fence. Maybe I just missed it or maybe Disagreeable is just being disagreeable. If it's not the case that the trees are leaning into the fence more because of any actions you've taken, then there is no contributory negligence on your part. I fail to see where trimming overhanging branches on your side of the fence could cause damage to the trees in such a way as to make them further damage the fence. You do have the right to trim branches on your side of the fence in such a way as does not threaten the health of the trees they are attached to. But since there were no such branches, that's not an issue here either.

    It would help your cause if you had some documentation from an expert that the neighbor's trees are damaging the fence. Can you get that from those contractors? Photos of the damaged portion, and of the other portions to show the difference, and an estimate from a fence contractor to establish a claim amount would also help.

    As you are already aware, the basic presumption in CA is that adjoining landowners are jointly responsible for maintaining the fence along the property line between them. Had she agreed to remove the damaging tree(s) when it was first brought to her attention, the fence repair costs might have still been a joint responsibility. I won't state unequivocally (I'm a surveyor, not your attorney), but strongly suspect that once the neighbor was aware or should have been aware that this localized damage was being caused by something only within her control, and when she declined to correct that cause, the costs of repair - for the localized damage only - became her responsibility alone. This is a small claims matter as far as the cost for repairing the fence is concerned. It may rise to the need for a higher level of legal action regarding abatement of the cause (tree removal). Either way, it would be a good idea to get at least an initial consultation with a local attorney, even if it is only the best way to present your case at small claims.

  7. #7
    Join Date
    Sep 2011
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    OH10
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    Default Re: Neighbor's Trees Destroying Fence on Property Line

    OP is responsible for trimming the roots and branches on their property. Not the tree owner specifically. OP needs to legally substantiate they requested the tree owner to take action. Their failure to do so and allowing the fence to incur damage such as it has will keep the burden for repair on them. Had they originally trimmed the roots, to avoid damage, they would have been within their rights. OP can certainly sue the neighbor, I do not expect the neighbor will recall the conversation.

  8. #8
    Join Date
    Sep 2005
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    Default Re: Neighbor's Trees Destroying Fence on Property Line

    What type of trees are we talking about and why is it that the fence cannot be fixed if the trees remain standing? Is it the tree roots that are the source of the problem with the fence?

  9. #9
    Join Date
    Oct 2007
    Location
    Ohio
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    2,568

    Default Re: Neighbor's Trees Destroying Fence on Property Line

    I think she described them as "Privets" which would be a hedge here in Ohio but who knows what they might be in California!

    They are an invasive species in any case.

  10. #10
    Join Date
    Sep 2005
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    Default Re: Neighbor's Trees Destroying Fence on Property Line

    There are a lot of varieties of privet. The shrubs, if overgrown, could push into a fence. With these described as trees, the trees in the family that I have seen if set back significantly from the fence would not contact the fence. Here's an example of huge broad-leaf privets alongside a fence.

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