Unjudicial Branch

Randall Stamen gets the calls regularly. Tree owners are livid that neighbors have surprised them by cutting down trees or shearing roots that run from the owners’ property onto the neighbor’s.

“I can’t imagine treating your neighbor that way. It absolutely astounds me, but it happens all of the time,” said Stamen, a Riverside attorney and certified arborist. “People will come home from work and their neighbors have removed the [owners’] trees or cut the foliage or roots so drastically that the plant becomes unstable.”

It used to be that you could cut a neighbor’s tree foliage or roots if they encroached on your yard, but a landmark case in May, 1994 changed things.

The court case, Booska vs. Patel, found that the defendant unreasonably severed the roots of another’s the plaintiff’s tree that extended into his yard. The root pruning caused the tree to become so unsafe it had to be removed. After reviewing the case, the court concluded that the defendant did not have the absolute right to sever roots, even if they were on his property, if it would damage his neighbor’s tree, as it did. It was his duty to act reasonably, and the court determined that he did not.

“This court case put things in a gray area,” Stamen said. “One person’s idea of reasonableness will differ from another person’s. Now there are many issues to consider, such as how big of an encroachment exists and the extent of damage created by the pruning. Alternative options such as root barriers and corrective pruning are now also being considered.”

Tree encroachment issues--whether it’s roots or branches--are a common problem in Orange County, said Fullerton consulting arborist, Alden Kelley, who serves as an expert witness in tree cases.

“We just live too close together and people either want or acquire . . . trees that are too big for their area and that inevitably encroach into their neighbor’s yard,” he said.

Although such situations can be resolved by the court system, most experts suggest that you work out tree encroachment issues with your neighbor so that you can avoid court.

“My advice is to compromise with your neighbor,” Stamen said. “If you’re having a problem, don’t cut before talking to your neighbor, because this will just escalate matters and it may lead to litigation.

“Approach your neighbor about the problem so that you can come to a solution you both agree on.”

Kelley agrees. “Those individuals who haven’t been through a trial have no idea what an emotional, costly grind that can be. If they can work out their differences peaceably, they’ll all be better off, including the tree in question.”

It’s a matter of subscribing to the good neighbor policy, said Henry Canales, supervisor of tree maintenance for Irvine.

“People will call me, ranting and raving, about cutting the branches and roots of their neighbor’s tree that are invading their property. Although the city can’t do anything about domestic disputes, I warn them that improper foliage or root pruning could kill the tree or make it vulnerable to wind throw and injure someone,” he said.

“I suggest that instead of cutting, they talk to their neighbor in a calm, rational manner. It’s such a simple concept, but one that people don’t often consider. Many of those callers will contact me a few days later and report that it worked.”

Before contacting a lawyer or sharpening your pruning tools, consider that your neighbor may be unaware that his or her tree is causing you a problem, said Lois Fox, executive vice president of Merit Property Management Inc., in Mission Viejo, which oversees 172 homeowners associations.

“Your neighbors aren’t in your yard and may not know what a tree is doing to your property,” she said. “My neighbor has a large ficus tree that was butting up against my home and lifting my roof, but she had no idea because she doesn’t have windows along that side of her house. When I told her the problem, she immediately had the tree trimmed.”

In many cases, it’s advisable to call a professional to do root or foliage pruning, or install root barriers.

Most home gardeners aren’t equipped or experienced enough to prune trees properly, especially when it comes to root pruning, experts say. A specific amount needs to be pruned from the foliage at the same time roots are pruned, and root pruning needs to be done a certain distance from the trunk.

Canales suggests making the idea of hiring a professional more palatable to your neighbor by offering to help pay for the pruning and root barrier costs. “Corrective pruning is much less expensive than repairing inevitable damage to hardscape and property,” he said.

Randall Stamen, who has a self-published book, “California Arboriculture Law” (1997, $50), can be contacted at (909) 787-9788.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Getting Control, Above and Below Ground

Fences might make good neighbors, but what if your tree’s roots are knocking over your neighbor’s fence? Or its limbs are blocking their ocean view? Instead of completely removing your mature tree--or asking your neighbor to move--a number of alternatives are available: thinning and pruning foliage is a starting point. And tree roots can be pruned, too, although it must be done carefully, or the tree can die. Root barriers are another option for controlling unneighborly roots.

ABOVE: Pruning branches

Done correctly, some encroaching branches can be safely removed from a tree, as long as proper pruning guidelines are used:

BELOW: Pruning roots

Tree trunk diameter (caliper) determines how far from the trunk roots may be safely trimmed.

BELOW: Installing root barriers

The distance between the tree and the area to be protected determines the length of root barrier needed:

Root barriers can be installed after roots have been pruned or before a new tree is planted.

GOOD TREES FOR SMALL AREAS

Try small trees or tree-shrubs, which can be trained to grow into either a tree or shrub:

Japanese persimmon (Diospyros kaki)

Western redbud (Cercis occidentalis)(tree-shrub)

Saucer magnolia (Magnolia soulangiana)-8 feet from property line

Redleaf photinia (Photinia fraseri)(tree-shrub)

Willow pittosporum (Pittosporum phillyraeoides)(tree)

Gold medallion tree (Cassia leptophylla) (tree-shrub)

Bronze loquat (Eriobotrya deflexa) (tree-shrub)

Coral gum (Eucalyptus torquata) (tree)

Sweetshade (Hymenosporum flavum) (tree)

Oranges, lemons, etc. (Citrus) spp.

*

TREES TO AVOID PLANTING IN SMALL AREAS

These trees grow too big for small yards, and have invasive roots and branches:

Any Ficus, except edible fig

Camphor tree (Cinnamomum camphora)

Coral tree (Erythrina caffra)

Blue gum (Eucalyptus globulus)

Sweet gum (Liquidambar styraciflua)

Shamel ash (Fraxinus uhdei)

Italian stone pine (Pinus pinea)

California sycamore (Platanus racemosa)

Weeping willow (Salix babylonica)

Brazillian pepper (Schinus terebinthifolius)

Sources: DeepRoot; Alden Kelley, consulting arborist; Ortho’s All About Trees