Malibu court decides case that could affect property rights everywhere

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In a city where property rights are highly valued, a Malibu jury decides for a property owner when the roots of his trees are cut by the owners next door.

By David Wallace/Special to The Malibu Times

It’s a luxurious neighborhood. Some might claim it’s defined by excess: houses enclosing more than 15,000 square feet of living space built within inches of property lines; SUVs snarling at each other on the winding, narrow roads; driveway gates grander than Versailles’, lithe blonde housewives walking matched pairs of rottweilers and neighbors suing each other over property issues.

Malibu?

Could be, but, in this case, it’s an equally upscale section of West Los Angeles, where, for the past two years, Bud Yorkin (who with partner Norman Lear created such TV hits as “All in the Family,” “Maude” and “Sanford and Sons”) and a developer have faced off over damage done to the trees bordering Yorkin’s estate. Appropriately (by the luck of court assignments), it was in environmentally litigious Malibu where, last month, a Superior Court jury awarded Yorkin $451,000 in compensation for the damage. More than four times greater than any such similar award, the judgment may establish a major environmental precedent with ongoing ramifications for the Malibu community.

Yorkin bought his 3-acre property with its English-style, 10,000-square-foot house 20 years ago. Since then, he’s transformed it into a verdant, park-like setting complete with a rose garden, tennis court and many secluded corners where he likes to write. Next door were his friends Jack and Bonita Granville Rather (Rather, a producer, owned the rights for “The Lone Ranger”), but because of a 150-foot-long wall of Eugenia and Victorian Box trees crowned by a pair of towering, century-old Aleppo pines bordering the property line, it was as if he lived deep in a wilderness.

“One reason I live here is I adore the privacy of the site,” Yorkin says.

Fast forward to the year 2000. Both Rathers have since died, their house has been razed, and construction has begun on two houses on the lot, one a 19,000-square-foot house being built by a group of investors known as Delfern LLD.

“I was walking by and saw an excavation sliced 40 feet into the ground-through soil, roots, and all-only inches from my property line,” Yorkin recalls. “Then, I was stunned to discover there were no laws protecting this sort of thing. (Roots from Yorkin’s trees had been sliced through.)

“So I called in some of the top arborists in the city who told me that my trees were no longer stable and had to be taken down. My lawyer agreed, telling me that if the trees fell I might be liable for any damage, so I had better remove them.”

Yorkin then discovered that the land had been packed so tightly building the foundation for the new house, replacement trees would have to be planted 10 feet back from his property line.

“The cost of doing all that-replacing the trees, knocking a hole in the fence around my property for access, tearing up my rose garden, losing 10 feet of my property and so on, was the basis of our computation of how much to sue for,” he says.

And last month that is what Malibu’s Superior Court jury awarded the writer/producer (Delfern had previously offered $25,000 to end the matter).

“But we’re not finished,” Yorkin’s attorney Keith Bremer adds. “The jury also found that, in addition to negligence, Delfern also trespassed on Mr. Yorkin’s property, but they didn’t render a clear judgment on that.” (Trespass and injury to trees carries double damages.)

“It was late afternoon and I think they were in a hurry to get home,” Yorkin laughs.

“So we’re going to ask the judge to have a retrial on the issue of damages as it relates to trespass,” Bremer adds.

However, a legal question that could be raised is, were Yorkin’s trees trespassing on Delfern LLD’s property? And, is a property owner forbidden to build on their own land if a neighbor’s roots are extending into it?

Attorneys for Delfern LLD have not returned calls, but Bremer expects an appeal based on several issues: among them, there is not a case in local jurisdiction that specifically allows for protection of branches and roots on another’s property.

Until all is resolved, the present judgment places a lien on the sale of the new house, priced at $25 million.

Yorkin can also breathe easier about who his future neighbors might be. There was a rumor within the community that the family many consider America’s most obnoxious, Ozzy Osbourne and his brood, was bidding on the property. That, happily for Yorkin, is now a dead issue.