Simon Offord, Esq., managing partner of Brewer Offord & Pedersen, LLP, a real estate law firm with offices in Palo Alto and Chico, California. He handles numerous neighbor lawsuits every year. BrewerFirm.com
Neighbor-versus-neighbor lawsuits seem to be on the rise. Maybe it’s because people were stuck at home during the pandemic, giving them time to get annoyed at the family next door. Maybe it’s because home values have increased, making homeowners more protective of their property. Whatever the reason, neighbor spats are escalating into legal actions as cooler heads fail to prevail.
Neighbor lawsuits tend to be a terrible idea—win or lose, neighbors likely have to go on living next door to each other, and suing makes that less pleasant. Whenever possible, the better option is to find a solution that both neighbors consider acceptable.
When you are at odds with a neighbor, it is worth knowing what the law has to say on the subject. These laws vary by state, and local ordinances and homeowners’ association/condo association rules can come into play as well, but here’s how the law has applied in seven tricky neighbor law situations…
Trees can be a fence. You have a stunning view of the ocean…until a neighbor plants a row of trees on his/her property that blocks the view. State laws typically provide no protection against this, so unless local ordinances or homeowners’ association rules apply, it might seem that you have no legal recourse.
But there is one possibility—many states have laws restricting or prohibiting “spite fences”—structures greater than a certain height erected to annoy neighbors—and courts have occasionally ruled that rows of trees can be considered spite fences. Example: In the case of Wilson v. Handley, the Handley family—unhappy about a two-story structure under construction on a neighboring lot—planted a row of evergreen trees to block the new home’s view of Mount Shasta. The court ruled that this row of trees met California’s definition of a spite fence, a ruling later confirmed in another case, Vanderpol v. Starr.
Your home might be your castle, but you probably shouldn’t build a moat. If you alter the natural flow of surface water on your property in a way that negatively impacts your neighbors, you could be held liable for damages. Example: A man named Romley constructed an ice rink on property he was leasing. This construction involved grading and leveling a section of the property and installing downspouts that diverted water. As a result, a neighboring property—an appliance store owned by a man named Keys—repeatedly flooded. On his own, Romley agreed to have a cement curb constructed to protect Keys from further problems.
This does not mean that an uphill property owner is always responsible for damage caused by water that flows from his property onto downhill neighbors. The uphill property owner likely isn’t liable if he/she has not altered the natural flow of water…and, depending on state law, he also might not be liable if he altered water flow but took “reasonable care” to avoid causing damage.
Smells like legal trouble. If you make so much noise that your neighbors can’t sleep at night, you could be sued for creating a nuisance. Similarly, generating odors can trigger nuisance lawsuits if the odors interfere with a neighbor’s use of his property. That doesn’t mean your neighbor can successfully sue you if the smell of your backyard barbecue wafts across the property line. But a court or local government official could conceivably consider such odors unreasonable if they’re generated everyday on a large scale. Example: A bacon-focused San Francisco restaurant was forced to temporarily close and install an expensive filtration system to reduce its odor emissions.
You’ve crossed a (property) line. Boundary disputes are common between neighbors—typically one neighbor builds a fence that accidentally encroaches a few inches over a property line. Homeowners often imagine that these cases are clear cut—if someone built something on your land, surely you have the right to remove it.
But that’s not always how these cases play out—courts sometimes grant encroaching neighbors the right to continue using the land…or even rule that the encroaching neighbor now owns the land outright. Example: The case of Palo Alto Hills Golf & Country Club, Inc. v. Almasi is notable because of the amount of land involved. The Almasis didn’t just build a fence a few inches onto the golf club’s property…their fence enclosed nearly 15,000 square feet of the club’s land. In fact, a portion of the Almasis’s driveway was constructed on golf club land. However, the Almasis didn’t do this intentionally—a prior owner of the property had erected an earlier fence in the wrong place, and the error went unnoticed for decades. The Almasis asserted ownership of the land through “adverse possession”—essentially, that they had occupied the land for so long that it was now legally theirs. The court rejected that claim because one of the requirements for adverse possession in California is paying taxes on the property, which the Almasis had not done. But the court did not hand the land back to the golf club, either, since doing that would have deprived the Almasis of driveway access to their home. Instead, the courts granted the Almasis an “equitable easement”—they could continue using the driveway. The golf club was allowed to remove the Almasis’s fence but could not reclaim the property.
Your tree, my branches. A tree stands on your neighbor’s land, but its branches and roots extend onto your property—can you trim back these overhanging branches to improve your view? Can you trim those roots to protect your home’s foundation or patio? In many states, you have a right to trim branches and roots that encroach on your property…but taking advantage of that right could be costly. If your trimming harms or kills the tree, you could be liable for damages. In California, for example, you could be required to pay twice the tree’s value…three times if the court rules that the killing was malicious. Fully grown trees can be astoundingly valuable, at least according to the arborists who inevitably testify in these cases.
Example: In the case of Rony v. Costa, a man named Costa hired a day laborer to do yard work that included trimming the branches of a Monterey cypress that stood in his neighbor’s yard but overhung his yard. This day laborer’s tree trimming was not done to professional arborist standards, and Costa was ordered by the court to pay his neighbor $45,060 for the damage done to the tree’s health and appearance.
If you need to contain the branches or roots of a neighbor’s tree, hire an arborist to do the work—and confirm that he/she is fully insured. Helpful: It might be possible to install root barriers to prevent roots from causing damage without endangering the tree.
Your tree, my solar panels. Imagine you paid tens of thousands of dollars to install solar panels…then your neighbor’s tree grows and prevents sunlight from reaching them. In most states, the law offers you no protection against this—if there are no relevant local or neighborhood association rules limiting tree height, your best option probably is to politely ask the neighbor to trim the trees or offer to pay someone to do this for him.
Exception: Solar panel owners in California might have some legal recourse, though this protection could be less extensive than they think. That state’s Solar Shade Control Act prohibits property owners from planting trees that shade more than 10% of a neighbor’s solar panels between the hours of 10 am and 2 pm. In one case, property owners named Treanor and Bissett were required to trim their redwood trees to allow sunlight to reach the solar panels of a neighbor named Vargas—even though the redwoods had been growing there long before Vargas installed the solar panels. California modified its laws following that ruling—these days, the law does not apply to trees planted before the solar panels were installed.
Your land…whose sky? You couldn’t stand on your neighbor’s land without permission, but can you legally fly a drone in the air above it? Probably—but with a caveat. Drones are legally considered a form of aircraft, so generally speaking your neighbor can’t stop you from flying your drone above his land any more than he could stop the airlines from flying planes above it. Example: In the case of Joe v. McBay, a family that shot a neighbor’s drone out of the sky was required to pay $850 to the owner of the drone.
But this does not mean drones can fly anywhere and film anything with impunity. State laws typically make it illegal to violate other people’s reasonable expectation of privacy. A neighbor who is inside his home or in his fenced-in or hedged-in backyard likely does have that expectation of privacy, so using a drone to film him there would not be legal. This invasion of privacy need not involve a drone being flown above the neighbor’s land—you likely would be considered just as guilty if you stood in your yard and reached a camera above the neighbor’s fence to take pictures.