Feature

Tree Dispute Resolution

by Roy C. Leggitt III

Trees As Part of Real Estate
Trees are the objects of much passion, be they a treasured landscape feature, an obstruction to views or an obstruction to construction. Trees are political, litigated for and litigated against, permitted by official agencies and the topic of many hearings.

View Obstruction
You are not normally entitled to a view through another property, unless there is a title restriction in place on that property. People will pay a premium for either the purchase or rental of a building that has a view.
Trees or tall shrubs planted at or near a property line may be considered a spite fence. A recent court ruling has determined that such plantings may in fact be illegal when over 10-feet high or capable of exceeding that height.

Property Line Encroachment
Roots and limbs enter adjacent property, irrespective of property lines, and to some degree with impunity. A Bay Area case from a few years ago determined that a property owner must act responsibly toward a tree that encroaches onto his/her property. Trees have rights independent of property lines. Each property owner has the responsibility to protect the health and safety of any tree occupying the air or soil space of his/her property, regardless of who owns the tree.

The clearance of limbs as needed to paint your building can often be handled with routine pruning. Be careful, however, because removing major tree limbs may in fact cause great harm to a neighbor’s tree.

Debris dropping into your yard from a tree you do not own is inconvenient, an added expense and perhaps a nuisance to you. If you must contend with only a few leaves from a well-maintained neighboring tree, your complaint may carry little weight. On the other hand, the presence of a large tree, without any recent maintenance and full of dead limbs, could pose significant risk to your property and may be viewed as a nuisance by the courts.

Tree Injury or Loss Due to Trespass
“So, neighbor, when are you planning your vacation?” The innocent answer to this question has often led to unauthorized pruning and removal of numerous trees. Never rely on a verbal authorization to prune or remove a tree you don’t own. Get it in writing! A trespass claim can land you in the poor house after you are penalized with double- or triple-damages.

Building Damage
A tree root can create 120 to 150 pounds of pressure per square inch of diameter growth. That pressure won’t normally damage a modern building, but what about the brick and mortar in many Victorians?
Tree uprooting during a storm may cause damage to a nearby building, even though the tree falls in the opposite direction. Roots that have underpinned the adjacent building can exert tremendous force on the building as a tree uproots.

TreeDamagefromConstruction
Carrying out construction on a property that has mature trees or abuts such a property should require preliminary planning with a consulting arborist. Where the tree impacts are too great, there may need to be building design modifications. If such steps are not taken, the tree will almost always suffer. Construction damage to a tree often creates such a hazardous condition that the tree must be removed. Other times, the tree is inadvertently damaged and abused by the casual use of the yard space, causing the tree to decline and die over the next few years.

Tools for Resolution
Attempt a neighborly communication—first verbal and then in writing. With a simple verbal request, neighbors usually are amazingly responsive. If their response is not what you were expecting, put your request in writing immediately. Be clear, brief and, most important, polite.

In cases where your tree has been damaged, removed or deemed a nuisance, seek the help of an attorney immediately. Do not call a tree service for free advice.

Mediation is typically required before you go to court. The less costly alternative to court is for both parties to choose binding arbitration.
When there is cause for concern, and particularly when the tree is large and poses a great risk should it fail, consider hiring a consulting arborist. A full-time consulting arborist is typically:

unbiased, without any connection to a specific tree service;
more qualified than a certified arborist;
trained in building construction mitigation techniques;
experiencedinworkingwith
architects, engineers and contractors;
experienced in shuttle diplomacy;
experienced in litigation-related assignments; and
trained in technical report writing.

Ask the consulting arborist for his/her curriculum vitae and areas of experience. Be advised that not all consulting arborists are equally qualified for your tree problem.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. Theinformation within this article is general in nature. Roy C. Leggitt III, is a full-time consulting arborist based in San Francisco who provides expert tree advice on construction projects and dispute resolution cases. Assignments often include site inspection, forensic investigation, technical report writing and testimony.