Josh Bonnici | Ask the Attorney

Josh,

I’ve been living in University Heights for many years now, but recently my longtime next door neighbor moved out. Since then, to be frank, my neighbor has been driving me up the wall, and I’m at a loss about what to do. Legally, what are my options, and how much of a pain will it be? 

Thank you,

Frustrated Neighbor

Dear Frustrated Neighbor:

Thank you for your question. I feel that almost everyone has had that neighbor who has nearly driven you up a wall. While neighbor disputes are always a sensitive topic (you live right next to them), there are rights landowners and tenants may protect under certain circumstances.

To start, while my tone is causal and jokes may be corny, none of my suggestions should be taken as legal advice, nor does it create any attorney-client relationship. However, I will point out some local codes and ordinances for you to weigh your options in order to peacefully remedy your situation.

Since there were no specific details of what’s going on, I’ll run down the list of the most common neighbor disputes and what the law allows.

Tree Rights

The first question is, who owns the tree? The law puts the responsibility on the owner. California Civil Code (CCC) Sec. 833 reads: “Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.”

For once, the law seems pretty straightforward. But what if the tree straddles the property line? CCC Sec. 834 states that if the tree’s base is on shared land, then the landowners share responsibility for the tree.

Now the classic Hollywood movie situation: If my neighbor’s tree limbs are hanging over my fence into my yard, can I cut them? Generally, yes. The law views encroaching branches and limbs as a nuisance, and a homeowner may remove the nuisance as long as the trimming does not seriously injure or kill the tree. If the trimming does damage, or the trimming occurs on braches or limbs not encroaching onto another’s yard, CCC Sec. 3346 allows for up to triple the damages caused to be repaid to the tree’s owner.

The more serious offense is when your tree is cut down without your permission. While this may not occur as frequently, the law takes unauthorized tree-removal very seriously. California Penal Code sections 384(a) and 622 make it a criminal offense with fines up to $1,000, and even possibly six months of jail time. California Civil Code of Procedure sec. 733 also provides civil relief to the injured party in the amount of double damages.

So, when it comes to trees, remember to check; 1) who owns the tree (i.e. who is responsible for it), 2) are branches or limbs entering your yard, and 3) only make trims as to not injure the tree. It’s also best practice to talk to the tree’s owner to let them know about the issue and your plans. A little heads-up usually goes a long way.

Fence Disputes

Let’s say you move into a new home. It’s a fixer-upper, but that’s fine — you don’t mind turning some blood, sweat and tears into equity. You repaint. You plant sod in the front yard. Then you attempt to tackle the 1985 fence in the back yard. But, you discover that the fence is on the property line that divides your house and your neighbor’s yard. So, you politely saunter next-door, introduce yourself and ask your neighbor to help in fixing or financing the new fence. They not so politely decline. What now?

The law is clear: Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them. CCC Sec. 841. Good neighbors should agree on splitting the cost of the repair, especially if informed that they have a legal obligation to do so. Politely let them know that it’s a shared responsibly, and you don’t mind taking lead on the project. If that fails, you have the option of sending your neighbor a demand letter setting forth his legal obligation and the cost of the fence and attach a copy of an estimate you have acquired. If your neighbor still refuses to pay his or her proportional share, your last resort is to either contact an attorney or proceed to pay for the fence yourself and consider filing a claim in small claims court.

Fence disputes can end up ugly, as they are not cheap to replace yourself, and oftentimes homeowners need a satisfactory fence to keep pets securely in their yard. Need to start a claim? Take photos, get legal advice, and investigate the small claims process in your local community.

Noise Disturbances

Noise complaints are commonplace, and usually one of the most uncomfortable issues to report. There are several options when it comes to noise issues, but I suggest starting from the beginning.

If you are a tenant in a rental apartment, there is usually a “quiet time” (or “Quiet Enjoyment”) clause defining when noise must be reduced. Refer to your rental contract to see if such a clause exists, and what it says. If the noise continues in violation of a rental clause, the next step would be to contact either the noisy neighbor or your landlord to report the issue. Whom to contact first depends on your relationship to your neighbor. Trust your instincts on which to contact, as asking the landlord to keep the report anonymous could make for a more comfortable living situation.

For other noise issues, San Diego Municipal Code Sec. 59.5.01 speaks directly to what type of noise is regulated, and to what decibel level. These include construction noise, animal noise (incessantly barking dogs, etc.) and agricultural/industrial noise.

Violations of the noise ordinance also could result in an administrative citation with fines up to $500. If you suspect the city’s Noise Ordinance is being violated, contact the Noise Abatement Office at 619-236-5500. Animal noise complaints may be handled by contacting the animal owner, Safe Streets Now or the city’s Code Enforcement Division. Noise complaints are generally prioritized by the number of complainants residing in separate residences. Noise complaints involving only one complainant are usually considered to be private matters between the parties.

I hope this breakdown of your rights as a neighbor helps you, Frustrated Neighbor. In the end, I usually suggest taking the less obtrusive route. No one wants to be in an endless war with his or her neighbor, especially if the dispute can be handled efficiently without lawyer or court interference.

Have more detailed questions? Do you believe you need legal representation? Feel free to reach out for a confidential case evaluation.

—Joshua Bonnici is the managing attorney at Bonnici Law Group, APC, a downtown civil litigation firm. He spends his time representing local families and individuals, as well as riding his bike or walking his dog around his hometown of Hillcrest. Contact him or ask him a question at [email protected] or 619-259-5199.