Wednesday, July 30, 2014

Encroachment conflicts: You be the judge

From page C3 | January 25, 2013 |

Mr. Appleseed purchased a two-acre hillside lot in Camino in 2006 where he intended to build his retirement home. In 2009, after retirement, he hired an architect to design his custom home and spent other money in preparation for building. Prior to issuing a building permit, the county required a survey of the property. The survey revealed that part of the neighbor’s barn was intruding several feet onto his property, called an encroachment. Mr. Appleseed demanded that the neighbor remove the portion of the barn that was encroaching. When his request was denied, Mr. Appleseed filed suit against his neighbor seeking a court order to force the removal of the barn, called an injunction. He also sued both the listing and selling agents who were involved in his purchase for their failure to disclose a significant and visible property defect that affected the current and future value of the property.

At trial, it was discovered that the barn was built without any permits and not only intruded onto Mr. Appleseed’s property but it did not comply with the county’s property line set back requirements.

The neighbor claimed that Mr. Appleseed was not entitled to a removal of the barn since the encroachment was unknown and unintentional. The barn only affected a small portion of Mr. Appleseed’s property and the cost to remove the barn far exceed the monetary loss to Mr. Appleseed if the encroachment was allowed to continue.

If you were the judge how would you rule? Does the neighbor remove the barn? Do the agents have any liability for their failure to disclose the illegal trespass?

The Judge said No! The encroachment was unintentional and minor in its effect on Mr. Appleseed’s property and did not justify ordering the expensive removal of the barn. The court further granted the neighbor an easement over Mr. Appleseed’s property for the life of the barn. Appleseed then petitioned the court for a monetary award claiming rent for the loss of use of his property. This was also denied by the court. For an owner to recover money damages from an encroachment, he has to act within the three-year statute of limitations which does not run from the discovery of the encroachment, but from the creation date of the encroachment. [Christensen v. Tucker 114CA2d554]

The agents were not liable; producing standard disclosures and encouraging buyers to obtain a survey. The seller was not named in the lawsuit but if he had known of the encroachment, he could have been held liable for his failure to disclose.

An encroachment is an improvement on real estate, such as a building, fence, driveway or tree, that extends onto real estate belonging to another without their consent. Most encroachments are easily determined by a survey locating property lines. Once an encroachment has been determined the remedies available to an owner are an injunction ordering the removal or monetary damages for the diminished value of the property.

A neighbor’s overhanging tree limbs are the most common encroachments. Most property owners understand they have a right to remove a neighbor’s encroaching tree branches when they extend over the property lines. The removal, however, is limited to those branches. How would you decide this next case?

The magnificent trees were a distinguishing feature of Ellen’s property and marked the property lines between her and her neighbor Paul. Over the years, Ellen periodically had the trees professionally trimmed to enhance their appearance.

One day Paul decided to build an outdoor kitchen. He hired a day laborer to trim back the branches overhanging the cooking area. The laborer not only cut branches intruding onto the property but also cut into the tree on Ellen’s property. The cuts left stubs that were not of “professional” quality and did not promote the health of the tree.

Ellen filed a lawsuit against Paul alleging he was responsible for the laborer’s tree cutting and should pay damages for the unsightly hack job the laborer inflicted on her tree while trespassing on her property. At trial both parties had expert witnesses who employed complex formulas to determine the value of the damage. Ellen’s expert calculated the damage at $59,248 while Paul’s expert calculated the damage at $7,500. Paul claimed he wasn’t responsible for the laborer’s unauthorized actions. The tree still remains healthy, albeit with a few less branches. If you were the judge, how would you rule?

The judge found that Paul was vicariously liable for the aesthetic damages done to Ellen’s tree by Paul’s day laborer and awarded Ellen $22,530 in damages. But under the provisions of California Civil Code 3346, the damage amount was doubled to $45,060. So what’s with that?

Civil Code 3346 provides “injuries to trees, timber or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment….”  The section also provides that if the trespass is “casual or involuntary” the damages will only be double. Thus, the court only allowed double the actual damages. The California Appellate Court upheld the ruling. [Rony v. Costa, First Appellate District, Oct. 12, 2012]

So the next time you think about trimming your neighbor’s intruding tree branches, be sure that your pruning stops at your property line.

Ken Calhoon is a real estate broker in El Dorado County. He can be reached through his Website at





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