San Diego, CA asked in Insurance Bad Faith, Land Use & Zoning and Real Estate Law for California

Q: I am currently in Escrow and had the inspection done. We noticed trees that we believe to be on our property

Completely ruining the neighbors driveway. What liability/risk do we have as homeowners of the new home that caused damage prior to our purchase? Appreciate any advice as we are first time buyers!

1 Lawyer Answer
William John Light
William John Light
Answered
  • Insurance Claims Lawyer
  • Riverside, CA
  • Licensed in California

A: This is a common legal question, and the answer is that the tree owner is liable under trespass and private nuisance theories (in most cases, at least). Whether you, as new property owner are liable, is something a a real estate attorney should be retained to evaluate. It may be something that can be passed on to the prior owner, but it appears to be an obvious and open condition, so it might be difficult to claim that it wasn't disclosed, and you purchased the problem with the house.

Among the remedies available to the adjoining property owner are cutting the roots at the property line; there is a caveat that this must be done in a "non-negligent manner," which the court didn't further define, but probably would include avoiding killing the trees or causing them to be in danger of toppling in a high wind.http://caselaw.findlaw.com/ca-court-of-appeal/1846370.html

The best practical advice is for the adjoining property owner to hire both a contractor to give a dollar estimate for the damage done to date, and a licensed arborist to give a written opinion that the trees caused the damage along with professional advice on what can be done "non-negligently" to prevent future damage.

Responsibility for the existing damage is, again, something on which I would defer to a real estate attorney.

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