The rationale behind the right of self-help is that, to the extent possible, property owners should be able to protect their interests without the necessity of resorting to the courts. Therefore, by virtue of the right to self- help, a property owner may cut back branches and roots that stray onto his/her property. The right of self-help is derived from the common law.
Though the principle of right to self-help gives the property owner the freedom to take steps necessary to protect the property, the right of self-help has certain limitations. Therefore, a property owner who engages in the self-help remedy of trimming back encroaching branches or roots must:
- not trim beyond the boundary line of his or her property; and
- take care not to injure the tree by trimming.
Moreover, to the extent the property owner needs to enter onto the property of another in order to complete the trimming, the property owner must obtain permission to do so.
An encroachment does not necessarily have to constitute a nuisance in the legal sense to entitle a landowner to remove it. However, as an initial matter, before resorting to any self-help steps, the property owner troubled by an encroaching tree should consider talking to the owner of the tree. It may be that the parties can agree to split the cost of a professional tree service or work on the trimming together. In that way, each party can take an affirmative role in remedying the problem.
A landowner may remove a fence erected on his or her property by the adjoining owner if the adjoining landowner erected it in the absence of an agreement as to the right of removal.[i]
In the case of Bonde v. Bishop, on the tree owners’ property, near the line between their property and their neighbors’ property, there was a tall white oak tree. Three of its main limbs extended over and above the neighbors’ property. A large limb broke loose from the tree, smashed through the neighbors’ garage, and smashed a section of their fence. Also, there was a continual dropping of smaller branches on the roof, driveway, and patio. The neighbors were required to clean up the debris from the tree daily. Finally the neighbors’ put screens on their gutters so that they would not have to clean them. During the subsequent trial, the tree owners called a tree expert witness who testified that safety did not require the tree to be cut down. The court in this case held that the evidence was sufficient to support a finding that the overhanging tree limbs were a nuisance to be abated by the tree owners.
Therefore, subject to certain limitations, the right of self help generally allows a landowner to take steps necessary to abate or remove an encroachment to his/her property.
[i] Bonde v. Bishop, 112 Cal. App. 2d 1 (Cal. App. 1952)