LAYING DOWN THE LAW – REAL ESTATE ENCROACHMENT with Special Guest Anne Munsil, Esq.

Christopher J. Charles, Esq. Provident Law	Anne Munsil, Esq. Provident Law

Everyone has that one neighbor – the neighbor who doesn’t cut their lawn, who leaves their trash or recycling bin on the street way after the pickup has come, whose mail sticks out of their mailbox, or whose Amazon boxes stay on the porch for days. If you can’t think of that neighbor, it’s probably you. Everyone can get frustrated or have disagreements with their neighbor, especially in a time we are all at home more. It almost feels like we are Jimmy Stewart in the Alfred Hitchcock thriller Rear Window, imagining vast conspiracies by the couple across the street.

But a very real issue involves intrusions from the property next door. What legal rights does an owner have if physical intrusions from the neighbor’s yard, such as tree branches, roots, leaves, reach onto an owner’s land? What about smells or fumes?

According to Arizona law, the physical entry on the land of another is a trespass. Brenteson Wholesale, Inc. v. Ariz. Pub Serv. Co., 166 Ariz. 519, 523, 803 P.2d 930, 934 (App. 1990). In MacNeil v. Perkins, the Arizona Supreme Court stated that a “trespasser is one who does an unlawful act or a lawful act in an unlawful manner to the injury of the property of another.” MacNeil v. Perkins, 84 Ariz. 74, 82, 324 P.2d 211, 216 (1958). Nuisance, on the other hand, is a “condition which represents an unreasonable interference with another person’s use and enjoyment of his property and causes damage.” Graber v. City of Peoria, 156 Ariz. 553, 555, 753 P.2d 1209, 1211 (Ct. App. 1988).

In the case Cannon v. Dunn, the Arizona Court of Appeals was presented with a case in which the roots of a eucalyptus tree had intruded into the “subsurface” of his neighbor’s land, but had not caused any damage. The Court held first that “a landowner who sustains injury by the branches or roots of a tree or plant on adjoining land intruding into his domain, regardless of their non-poisonous character may, without notice, cut off the offending branches or roots at his property line.” Cannon v. Dunn, 145 Ariz. 115, 116, 700 P.2d 502, 503 (Ct. App. 1985).

However, the Court also found that to sue for money damages or for injunctive relief, the neighbor must prove that he has suffered “actual and sensible or substantial” damage as a result of the trespass. Id. 

Essentially, if a tree from a neighbor’s yard is intruding into an owner’s yard and causing damage, then the owner has three options:

1. Self-help: cut off whatever part of the tree is intruding into the property
2. Sue for injunctive relief
3. Sue for money damages

If the property is part of an HOA, the owner also likely has a claim for breach of contract for violation of the HOA’s CC&R’s. However, abatement or removal of the nuisance can often be expensive, so the offending neighbor doesn’t want to pay to remove the offending tree. Getting their homeowner’s insurance involved can often be a convenient way to ensure the nuisance is removed.

Intangible intrusions, like music, fumes or smells can often be just as damaging. In United Verde Extension Min. Co. v. Ralston, the Arizona Supreme Court found that a landowner who was legally operating a copper smelter on his property could be held liable for nuisance because the smelter’s “poisonous fumes” prevented his neighbors from being able to farm or rent out their land. United Verde Extension Min. Co. v. Ralston, 37 Ariz. 554, 564, 296 P. 262, 265 (1931). In addition, another Arizona case, McQuade v. Tucson Tiller Apartments, Ltd. found that “music does not constitute a nuisance per se, but it may become a nuisance because of loud noise or the attraction of large crowds,” and applied a balancing test between the reasonableness of the defendant’s activities in the locality balanced with the “substantial injury” and annoyance to the “normal person.” McQuade v. Tucson Tiller Apartments, Ltd., 25 Ariz. App. 312, 314, 543 P.2d 150, 152 (1975).

Dealing with bad neighbors and intrusions can be frustrating, time-consuming, and tricky. If you or someone you know is experiencing a property dispute, contact our office today to schedule a consultation with Ms. Courchaine. At Provident Law, our real estate attorneys are experienced in dealing with all issues concerning real property, from nuisance and trespass to complex commercial lease matters. Contact us today and learn how we can help.

Anne Courchaine is an Associate Attorney with Provident Law®, where she focuses on real estate, commercial litigation, and family law. She can be reached at a.courchaine@providentlawyers. com or 480-388-3343.

Christopher J. Charles is the founder and Managing Partner of Provident Law®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). Mr. Charles holds the AV® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions. Christopher teaches continuing education classes at the Arizona School of Real Estate and Business and he can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.