Craig Forry

Craig Forry

Q: My neighbor's camphor tree has branches that overhang the wall between  our properties, and its roots are extending into my yard and damaging both  the wall and my patio deck. Can I cut the branches and roots and bill my  neighbor?     A: With recent developers positioning houses very close to the property lines to  maximize the number of houses in the development, it is more common for  branches and roots of a tree to extend over and into the property of the adjacent  owner. Although the adjacent owner has rights to cut the intruding branches and  use any overhanging product, such as fruit, both the tree's owner and the adjacent  owner have certain duties and responsibilities depending upon the particular  circumstances.  First, the location of the trunk of the tree determines who owns it, even if the roots  grow into the land of another. If the tree is located directly on the boundary line  between the properties, then both landowners have common ownership of the tree  which affects application of the rules described below. Neither owner has a right to  cut down a tree on the property line or cut any part without the consent of the other  owner, even if the tree is causing damage.  The most common situation is a tree owned by a neighbor that has branches or  roots, or both, that intrude over and into the property of the adjacent landowner.  The rights and liabilities of the landowners depends upon the particular  circumstances created by the nature and extent of the encroachment.  Both the tree's owner and the adjacent owner should try and agree on a remedy to  the encroaching roots before either takes any action. It is always beneficial to  document any attempt to have a tree's owner act reasonably to limit encroachments  caused by the tree because if a court action is ultimately required, the  documentation will demonstrate the good faith of the adjacent landowner to resolve  the dispute before resorting to self‐help or legal action.  The tree's owner is responsible for any damages that are caused to the adjacent  owner from falling branches or roots. So it is in the best interest of the tree's owner  to control the growth of the tree so it does not create a source of potential damage  to the adjacent landowner.  In the situation where a tree is located entirely on the neighbor's property, and  reasonable good faith efforts to resolve the dispute are unsuccessful, then the  adjacent landowner has certain rights. For example, the adjacent owner can cut the  branches and can collect any product, such as fruit, that overhangs his property.  However, the branches can only be cut back to the property line. The adjacent  owner cannot enter the neighbor's property and cut the tree down. Such conduct  would be viewed as trespass of the neighbor's property and exposed the adjacent  owner to a claim for damages based upon the value of the tree. If the court  determines that the cutting down of the tree was willful and malicious, the tree's  owner may recover treble damages under Civil Code, section 3346, and Code of Civil  Procedure, section 733.  If the branches are so extensive or high that a profession arborist is required to  remove the encroachment, the bill can be sent to the owner of the tree, and if  payment is refused, a small claims action can be filed to recover damages in the form  of the cost of removal.  If the roots of the tree extend onto the property of an adjacent property, then the  tree owner is responsible for a trespass and the owner of the adjacent property can  cut the roots if they are causing damage. Therefore, while there is an absolute right  to cut back encroaching branches, encroaching roots can only be cut if there is  evidence of damage to the adjacent property. If the roots are cut when there is no  damage evident, then the tree's owner may recover damages if the tree is damaged.  Encroaching branches and roots that cause or threaten damage may constitute a  nuisance and a court may agree to issue an injunction against the encroachment.  However, in order to obtain the injunction, the court will typically require a showing  the branches or roots are causing damage or otherwise interfere with the use and  enjoyment of the adjacent landowner's property.  The best course of action when a neighbor's tree is encroaching is to discuss the  issue and attempt to work out a solution with the neighbor, and if an agreement can  be reached, then the terms should be reduced to writing and signed by both parties.  Before using self‐help or filing a court action, written communications should be  sent to document the nature and extent of the good faith efforts to resolve the  dispute. But if all else fails, then the general rules outlined above should be  considered, and professional advice obtained, before taking any action.  The opinions expressed in this article are those of the author and not the Daily News.  Individual circumstances may vary and professional advice is recommended before  making decisions.Q: My neighbor’s camphor tree has branches that overhang the wall between our properties, and its roots are extending into my yard and damaging both the wall and my patio deck. Can I cut the branches and roots and bill my neighbor?

A: With recent developers positioning houses very close to the property lines to maximize the number of houses in the development, it is more common for branches and roots of a tree to extend over and into the property of the adjacent owner. Although the adjacent owner has rights to cut the intruding branches and use any overhanging product, such as fruit, both the tree’s owner and the adjacent owner have certain duties and responsibilities depending upon the particular circumstances.

First, the location of the trunk of the tree determines who owns it, even if the roots grow into the land of another. If the tree is located directly on the boundary line between the properties, then both landowners have common ownership of the tree which affects application of the rules described below. Neither owner has a right to cut down a tree on the property line or cut any part without the consent of the other owner, even if the tree is causing damage. Continue reading

Hostile Use of Land Can Create a Prescriptive Easement and Loss of Exclusive Use Q: For a long time, my neighbor has used a trail across my backyard, even though I repeatedly told him he was trespassing. He recently told me that he would continue to use the trail and there was nothing I could do about it. Is he right, and what can I do to prevent his use of the trail?

A: There are many types of real property concepts that have continued since the middle ages, but a prescriptive easement is one of the more egregious types because it enables a person who is not an owner and who has repeatedly trespassed despite objections, to have the right to use the land together with the rightful owner. Once established, the prescriptive easement lasts forever, and must be disclosed as a cloud on the title to the property that can reduce the value of the property. Therefore, an owner must be vigilant when another person is repeatedly using the land. Continue reading

A Homestead Declaration can protect your equity from creditorsQ: I own my residence with my wife and a friend mentioned that I should record something called a declaration of homestead because I have been sued and a judgment may be entered against me, but I do not know what it is, how to prepare it, or what benefit it may provide to me. Should I prepare and record a homestead declaration and what do I need to do to have it become effective?

A: So long as the statutory specified procedures are followed, any owner of a residence can declare that it is the owner’s homestead. Article XVII of the California Constitution creates the right and the California Code of Civil Procedure, sections 704.720 through 704.995 provide the statutory procedures that must be followed to declare a homestead. The owner does not have to be a citizen of the United States, and an unmarried person can record a declaration on his or her undivided interest in the property that is owned in co‐tenancy with the other owner. Continue reading

Forry Law Group: Real Estate and Civil AttorneysQ:  I have a residence that I have been renting and I want to sell it, delay payment of the capital gain tax, and then purchase an office building.  Can I use a 1031 tax deferred exchange to delay payment of the tax I would otherwise have to pay?

A:  Subject to the extensive tax code and rules and regulations of the IRS, the use of an exchange of property under section 1031 of the tax code should be considered as a method of delaying payment of the capital gains tax owed on the proceeds of the sale of relinquished property.  However, it is a relatively complex transfer of real property that has significant tax issues, and the advice of a qualified and trustworthy accommodator should be sought before making a decision about using a 1031 tax deferred exchange. Continue reading

Forry Law Group: Real Estate and Civil AttorneysQ: I recently purchased a second home with the intention to rent it, but I do not know how much I can charge as a security deposit, or the procedure I should follow in accounting for the security deposit after the tenancy ends. Can you provide me with the basic information I need to follow regarding security deposits?

A: Security deposits on residential rental property are governed primarily by California’s Civil Code, section 1950.5. Residential rental “security” is “any payment, fee, deposit or charge” that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or imposed as an advance payment of rent, to be used for a default in the payment of rent, for the repair of damage to the premises other than ordinary wear and tear, for cleaning necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy and, if the rental agreement expressly so provides, to remedy tenant defaults in the obligation to restore, replace or return personal property or appurtenances (exclusive of ordinary wear and tear). The label given a payment at the outset of the tenancy is not controlling and any fee, however denominated, is considered a security deposit. Continue reading

Forry Law Group: Real Estate and Civil AttorneysQ: As a broker representing a seller of a single family home who has been leasing the property, what should I be aware of during the sale transaction and how can I ensure that my client will not have any legal issues with the buyer regarding the tenant?

A: A property that is listed for sale when occupied by one or more tenants presents special issues that must be recognized and addressed during the negotiations with both the buyer and the tenant. The California Association of Realtors residential purchase agreement (“RPA”) provides in paragraph 5‐C that with respect to tenant occupied property, the property shall be vacant at least 5 (or other designated days) prior to close of escrow, unless otherwise agreed in writing. If the seller is unable to deliver the property vacant in accordance with rent control or other applicable law, the seller may be in breach of the RPA. Therefore, when representing a seller of property occupied by a tenant, any offer in the form of the standard RPA should be countered with a provision that addresses the terms under which the seller is able to have the property vacant during the escrow if the standard provision cannot be complied with. Continue reading

Forry Law Group: Real Estate and Civil AttorneysQ:  The heavy rains this winter severely damaged the roof and interior of my house and although I have insurance coverage, how can I be sure that I recover all of the benefits I am entitled to under my insurance?

A:  After a claim is reported to an insurance company, it will conduct an investigation to determine whether the claim is covered under the policy, and the nature and extent of benefits the policy holder is entitled to receive.  But the person assigned to investigate or adjust the claim is hired by the insurance company and is required to follow the company’s policies in handling the claim, even if they limit the ultimate recovery by the insured. Continue reading

What recourse does a property owner have against an unlicensed contractor? Q: I hired a landscaper knowing he did not have a contractor’s license and after I paid for several months of work at my house, I want to terminate the contract and recover all of the compensation I paid the landscaper. Can I retain the benefits of the work performed and also recover the amount I paid the landscaper, even though I knew he was unlicensed when I hired him?

A: Yes, although it seems unfair that a homeowner may retain the benefits of work performed by the landscaper even though the homeowner knew he was not licensed before the work began, section 7031 of California’s Business and Professions Code provides the hiring party with both a defensive shield against any claim for payment by the unlicensed contractor, and an affirmative sword to sue the unlicensed contractor for all compensation paid under the contract. Equitable defenses such as unclean hands, estoppel, unjust enrichment, and even claims of fraud by the hiring party, will normally not be available to the unlicensed contractor, even if they are based upon the hiring party’s prior knowledge of the unlicensed status. Continue reading

How you take title in a home purchase is very important.Q:   Because my wife and I cannot afford the down payment on our first residence by ourselves, her father has offered to provide 100% of the down payment so long as he is a co-owner of the property and can share in any appreciation in value of the property, and we make all of the mortgage payments.  What options do we have in specifying how the grant deed to the property should be prepared to provide my father-in-law with a recorded interest? Continue reading

Forry Law Group: Real Estate and Civil AttorneysQ:  I need to sell my house with a short sale because I can no longer afford to pay the mortgage.  But there is a cloud on the title in the form of a deed of trust that I paid off long ago to my brother, and he refuses to have the deed removed from the title.  What can I do to get the title cleared of my brother’s deed so I can complete the short sale? Continue reading

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