December 24th, 2018 at 10:43 am

Fact Pattern: This is the actual court case of the Chopped Christmas Tree. The Soneses and Kallises were next-door neighbors in Los Angeles. They shared a mature 70-foot Aleppo pine tree. The Soneses, however, honestly believed that the tree was entirely on their property. Fearing that the tree would topple over, the Soneses cut down the entire tree. The Kallises sued for wrongful removal of the tree. In court, they presented a property survey showing that 41% of the tree was on their property. They also presented photos of the tree shading their property, including a playhouse that was first used by their children, and then by their grandchildren. The Kallises won their case, because under California law, neighbors jointly own a tree on the property line.

You Be the Judge: The central issue of this case was the calculation of damages. The Kallises did not show any diminution in economic value, which is the difference between the value of the real property before and after the removal of the tree. They, however, had an expert witness testify that the value of the tree based on its age was about $40,000, and the cost to plant and care for a new tree was about $10,000, for a total of $50,000. The Kallises’ expert also testified that locating, transporting, and installing a 70-foot tree, identical to the one removed, would cost about a million dollars.

California loves its trees. The law allows the amount of recovery for a wrongful but accidental injury to a tree to be two times the actual detriment (or three times for an intentional wrongful act).

The Soneses argued that the Kallises’ monetary damages should only be 41% of the total detriment to account for their partial ownership of the tree.

Multiple Choice Question: If you were the judge, what would you award the Kallises in monetary damages? Pick the best answer:

A. Zero (because there was no diminution in value).
B. $100,000 ($50,000 multiplied by 2).
C. $2 million ($1 million multiplied by 2).
D. $41,000 (41% of Answer B).
E. $820,000 (41% of Answer C).

Answer: The law does not have a single fixed rule for measuring damages for injury to trees, and generally relies instead on a judge’s discretion. Even though there was no diminution in value (Answer A), the court could award restoration costs if there was a reason personal to the owner for restoring the original condition.

In this case, the court found that the Kallises succeeded in proving that they had enjoyed the tree for dozens of years, and that they had placed great personal value in the tree. Hence, the court believed that the Kallises would restore a similar tree on their own property (and the court did not go with Answer A). The court therefore awarded the Kallises the amount in Answer B as restoration costs multiplied by 2. The court considered the amount in Answer C to be unreasonable, and so Answer E (41% of Answer C) was out too. Answer D may be an appropriate measure of damages in another situation. However, the court had the discretion to determine whether to proportionately reduce the amount of damages. Furthermore, both neighbors jointly owned 100% of the tree on the property line (not 41% and 59%). Additionally, the cost of restoring a tree would likely be the same, regardless of whether you are restoring 100% or 41% of that tree.

Source: Kallis v. Sones (2012) 208 Cal.App.4th 1274.

-Happy Holidays everyone! Have a wonderful time cuddled up with your loved ones!

Copyright© 2018 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of December 24, 2018. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.

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