Articles Posted in real estate law

In California, a tree growing on a property line is considered a “line tree,” and the owners on both sides have rights and responsibilities. The Civil Code states that they own the tree in common. (Civil Code section 834) As a result, neither owner is free to cut down the tree without consent of the neighbor, nor to cut away the part in his side if it would injure the common interest in the tree. If they do, they can be liable for double or triple the harm done. Anyone with a tree line concern should consult with a Sacramento and El Dorado real estate attorney before taking action, or they may be in the position of the landowner who recently was hit with a judgment for over $107,000.

In Kallis v Sones there was an Aleppo pine tree growing on the property line. Close to the base it split into two separate trunks, which were far enough apart that the fence ran between them. The defendants became concerned that the tree would topple over, so they hired workers who cut down the entire tree. The tree was large- 70 feet tall, and the separate trunks measured 23 inches & 24 inches in diameter. The shocked neighbors sued.

The tree cutters lost the suit, and the contested issue became damages. Generally, damages may be awarded in an amount that will compensate for the detriment that was caused. The court awarded damages for the value of the entire tree, not just the portion on the plaintiff’s side. The defendants complained that the amount should be reduced to the percentage of tree that was on plaintiff’s side of the line. The court said no. The tree’s unusual size and form made it unusual. The large canopy shaded the plaintiff’s entire home. The large canopy was highly valued and had great personal value to the plaintiffs. The court had discretion to determine the measure of damages, and was not required to reduce it.

California prescriptive easements arise when someone uses someone else’s property without permission; its almost that simple. The idea is that, if the use is open, and continues for five years, the true owner of the property has time, and an obligation, to take action to stop the unwelcome use, which is really a brazen trespass. In a recent Southern California decision, the party claiming a prescriptive easement had a problem – they had permission to use the property. Not only did the court reject their claim, but it awarded attorney fees to the defendant. Anyoneone finding themselves wondering about a prescriptive easement should consult with a Sacramento or El Dorado real estate attorney..

In Windsor Pacific v. Samwood Co., Windsor had a written easement giving it the right to access property and use roads across defendant’s property. Specifically, to use Tick Canyon Road, and Trash Canyon Road, two roads that I certainly want to travel on. However, Windsor sued to establish a prescriptive easement.

The is a four prong test for establishing prescriptive easement:

California equitable easements are created by courts when, balancing the conveniences of the parties and considering the relative hardships between them, the court refuses to prohibit a nuisance or encroachment. This is the same result, though a slightly different analysis, that an implied easement. Anyone faced with a problem use, where it appears necessary for one party but unwelcome by the other, should consult with an experienced Sacramento and Placer real estate attorney. In a recent decision, a plaintiff bought property knowing that there was a road across it used to access other parcels. There was no recorded easement, so he sued to stop the use. The defendants countered to quiet title to an easement. The court said stop complaining.

In Linthicum v. Butterfield, the plaintiff bought parcel One in what was originally National Forest land. Prior to that, the Forest Service granted a special use permit to the owner of parcels two through ten to build an access road across parcel One, which was still owned by the Feds. Through a number of transactions, other people eventually owed Two through Ten, the Feds sold One, and the Plaintiff ended up with One. The Special Use Permit had not been transferred to the new owners of Two through Ten, but the Forest Service considered it still valid, though needing to be transferred. Owners of Two through Ten had used the road for possibly 60 years to access their property.

At trial, testimony about building an alternative route across much steeper land would require a 40 foot high retaining wall and moving 40,000 cubic yards of earth (i.e. very expensive.). The Judge did a site visit, and said the existing road was the only access, and quieted title in the easement.