0000009134 00000 n What about branches and debris that falls into the adjacent property? Falling Leaves. The Tree with an exposed root on private property that is maintained by the association has damaged the private property driveway That person claims the association is responsible because the association maintains the front yard. In a 1984 decision, a Florida appeals court noted that while there was substantial authority to the contrary in other jurisdictions, the undoubted right of the land owner himself to cut off intruding roots or branches at the property line, precludes a negligence claim. The 2012 case of Rony v. Costa [210 Cal.App.4th 746] is a good example that might serve as a warning to those who do not act reasonably. Our board has recently proposed a rules change that requires individual homeowners to be responsible if a common area tree's roots uplift the common area sidewalk in front of your home as well as patio or any other damage. If you live in a condominium or planned housing development, then you live in a common interest development. If youre a member of an HOA and your neighbors branches or roots have damaged your property, youre in a much better position than the situation described above. This right is called the right to quiet enjoyment. Civil Code Section 834 says that trees whose trunks stand partly on the land of two or more owners belong to them in common. 10 / 11. Giant oak trees can provide great shade and color but the leaves can go everywhere creating a clean-up mess. . It does not provide an easement for passive solar collectors, like south-facing windows that warm buildings by letting in more sunlight. hU PW~,9xI"FD@AB:uZ7 A homeowners self-help rights in the case of encroaching roots, however, is not as clear as it is in the case of overhanging branches. In short, your right to cut your neighbors encroaching roots down will be weighed against your obligation to not damage your neighbors tree. Scottsdale homeowners in a DC Ranch community could face a $16,000 bill to remove and replace 670 Sissoo trees that can have damaging roots. The claims is that the HOA owns the tree( because the HOA maintains the yards/trees) and has to pay to fix the damage to the driveway. In this instance, assuming your documents say nothing, the tree is basically a nuisance damaging your plumbing. Obviously, for the sake of neighborly peace and harmony, every effort should be made to speak to the offending owner and ask him or her to remedy the problem. 6. These are often between neighbors and focused on how trees grow along property lines. The best course of action is to keep calm and use common sense in case of an encroachment. As mentioned in prior Articles, California law is clear that a neighbor has to act reasonably in trying to stop actual or potential damage from a neighbors trees. Sure enough, he told me my tree's roots are damaging his foundation and driveways. California Tree Law for One's Own Trees Under California Civil Code Section 833, trees with trunks that stand entirely on the land of one owner belong exclusively to that person. 5 and authorities cited.). Be aware of the wordings in the CC&R that you are required to carry your own insurance to cover any loss within your own unit. Now He Has To Pay Thousands. There is some case law in California that seems to permit a homeowner to cut a neighbors encroaching roots only if the roots are causing some damage to the homeowners property (e.g., neighbors roots are causing cracks in your hardscape or pool). For branches and debris, the cost of legal action can easily exceed the cost of clean-up. The trees were ordered removed. By viewing this website, you acknowledge all of the following: (i) MBK Chapman does not guarantee that you will receive a response to any question or comment that you submit via the "contact us" form; (ii) nothing on MBK Chapmans website or submissions made by you are intended to create, offer, or promote an attorney-client relationship between you and the firm; (iii) an attorney-client relationship with any attorney at the firm can only be formed through a written fee agreement signed by you and a partner of the firm; and (iv) the testimonials and/or endorsements found on this website do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 1361 0 obj HOATalk is not a licensed attorney, CPA, tax advisor, financial advisoror any other licensed professional. When someone, like your neighbor, interferes with your right to quiet enjoyment, that neighbor can be held liable for engaging in a private nuisance. If solar panels are blocked by trees or shade, it is possible that the solar panel owner may have a legal action against you. On the other hand, if the damage caused another issue, such as your pipe bursting and water flowing into your home, then you might be covered for the water damage . startxref If it is a neighbors tree, talk to the neighbor, and then put your concerns in writing before you take the next step. Since 1886, California caselaw has provided that a property owner is essentially strictly liable for damages caused by tree roots and branches that encroach on anothers land. A lifted slab 1/4 of an inch or higher is designated as a trip hazard. Law Offices Of Stimmel, Stimmel & Smith: Encroaching Trees: Who Has the Right to Do What? The rule should always be: if the Seller thinks that this has been an issue, they can be reasonably certain that their buyer may feels the same. Be Aware of Tree Root Issues. The association must be consistent in uniformly enforcing the governing documents. However, that is not the case in all cities and counties in the state, so it pays to research the law before taking out a tree. The damage is on my side of the property which needs to be repaired by going under the the sidewalk and is costly.This was caused by trees on common ground. But if the downed tree caused no. To take advantage of that method, however, you and your neighbor have to be members of a California HOA. It also ruled that the protections of the Solar Shade Control Act were limited to active solar collectors designed for the specific purposes of the act. 2. DESTRUCTION OR HARM TO A NEIGHBORS TREES: BE CAUTIOUS, Section 230: Free Speech, the Internet, and Terrorism. A neighbor might also be unhappy about falling leaves from the association's tree. If a trees trunk happens to rest on two different properties, then those property owners own the tree as tenants in common (Civ. Install a root barrier around young trees at a depth of 18 to 24 inches (46-61 cm.) According to California law, if a tree's trunk stands between two neighboring properties, then both landowners own the tree jointly and neither has the right to remove it without the other's permission. Assume for a moment that you move forward with lawsuit against your neighbor and that you prevail at trial. No such action should be undertaken without first seeking to get the trees owner to remedy the problem. . In California, it is forbidden to ruin the aesthetics of the tree or to cause it serious injury by cutting. 0000004694 00000 n Remember, in trying to determine who is responsible for the damage, get to the root of the problem (no pun intended)find the source of the damage and that will tell you who is responsible to pay for it. HOA tree root damage my cement ( crack cement). This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. A lawsuit for a nuisance was brought. We have a similar problem. %PDF-1.7 % In most cases its pretty easy. This includes maintaining and preserving landscaping. One thing that all common interest developments have in common is that they are governed by an association of members (i.e., the owners) who enjoy the use of shared common areas and amenities. But more frequently, such encroachment is seen by the affected neighbor as a negative. It is only when a tree obstructs a solar easement granted under the Solar Shade Control Act or when trees were deliberately planted for spite. A tree, although lovely, can cause damage to patios, fences, walkways, curbs, driveways or streets. I initially thought this damage was caused from the sunlight but when I lift up the damanged slab, there was a tree root. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorneys firm and get authorization to send that information to them. One neighbor paid a tree trimmer to cut back a tree that was encroaching over his property. The owner of a tree is the one upon whose land the trunk of the tree sits, regardless of whether or not the trees roots or branches extend onto someone elses property (Civ. If you are found liable for a wrongful act that involves cutting down, removing, girdling or doing anything that would injure a tree, the damages can be multiplied depending upon which statute you are sued under (Civil Code Section 3346 or Code of Civil Procedure Section 733). A property owner who finds a neighbor's tree encroaching must first warn or give notice to the tree owner prior to commencing . Ellensburg, WA 98926 In California, a tree blocking light on a neighbor's property is not a legal nuisance. If tree roots rupture something like a septic system in a neighbor's yard, there could be claims made against the tree owner. Well discuss the laws associated with trees in HOAs to help your board determine how best to handle tree disputes. 30+ years real estate law legal experience. In fact, in some instances, the trespassing/destroying homeowner could be liable for triple damages if the destruction/damage is deemed intentional, or double damages if the injury is deemed casual or involuntary (Civ. info@bpelaw.com If the HOA refuses to pay for your damage, you should consult an attorney. The court found that the cost of replacing the tree was $53,628 and refused to limit the award to 41 percent of that amount. In the 1994 case of Booska v. Patel, a California appellate court ruled against a neighbor who claimed to have the absolute right to cut encroaching roots and branches at the property line. It is out of the question to cut the entire tree down or to hack it back in a manner that will damage or kill the tree. The damage where the roots of the tree have been growing into would not be covered because the tree roots did not grow overnight. A final dollar figure for actual loss might include: The cost of replacing the tree. 10775 Double R Blvd. 0000009575 00000 n If they refuse, then the neighbor should engage the services of a licensed arborist to trim the roots and branches is such a way as to reduce the property damage while not injuring the tree. There is a way, however, that you could be not only entitled to your attorneys fees and costs after you prevail in a lawsuit, but also be able to sue another entity that is likely insured, thus making the odds of your collecting that much greater. Alternatively, youre also free to involve the courts by suing your neighbor for causing a nuisance, or if you live an HOA, for violating the governing documents. 0000003348 00000 n Make sure you know how to check if tree roots are gumming up your sewer line. These laws normally apply only to sidewalks on public property, so a fully captured HOA would not neccesarily need to follow these rules. General Concrete Slabs. Not necessarily. Species such as weeping willows, Monterey. The owner of the tree may be responsible for damage caused to a neighbors property but only if it can be found that the trees owner failed to properly maintain the tree. The court ruled that this was not an actionable nuisance and that Leiderman did not act with malice when he planted the trees 10 years earlier. Our association has had a bit of disagreement over this topic too. In abating the nuisance, without court action, the injured landowner may not cut the tree down or cut its branches or roots beyond the extent to which they encroach upon his/her land. 0000006878 00000 n Trees whose branches or roots encroach over or on the land of another may constitute a nuisance. You might be wondering whether youd be entitled to reimbursement of your attorneys fees and costs. type of trees can keep both homeowners and HOAs happy, responsibility for maintaining the common area, DAVIS-STIRLING ACT | ANNUAL DISCLOSURE LIST, Effective Emergency Planning for HOA Communities, Insuring for Disasters: HOA Budgeting and Planning, Unforeseen Conditions and Hidden Costs of Construction Projects. Maintenance free living does not mean free maintenance. If you intentionally cut down or prune a tree and it is later discovered that the tree was on your neighbor's property, you can be ordered by a court to pay the value of the tree plus up to three times the value of the tree in punitive damages. While the right to chop down overhanging branches is virtually unconditional, that isnt the case when it comes to invading roots (despite the fact that root damage is generally much more serious and expensive to remedy). A frequent source of tension between neighbors arises when the branches of a tree extend onto someone elses property. 5. Simply cutting off encroaching tree roots or branches could actually kill the tree or render it unstable and dangerous thus exposing the cutter to substantial legal liability for all damage including replacement of the damaged tree. Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel. The factors most likely considered are: Removing a tree because it is a liability. The HOA chose improper trees 30 years ago and planted them too close to hardscape and buildings. The root flare of a 30 to 36 inch DBH live oak can extend almost the entire width of the 6-foot swale. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsors profile page. <>stream According to the Claims Adjuster, State Farm has taken the same position in other matters. Good luck with calling a special homeowner's meeting! 0000000016 00000 n But trees also can be a source of tension among neighbors if they're not properly maintained, drop debris over the fence, or cause other problems. However, this argument has not been tested in the courts and is contrary to fairly well-established precedent outside of the association setting. If you dont feel comfortable engaging in self-help by removing the encroaching branches and roots yourself, you dont have to do that. Learn what California law has to say about trees in HOAs. . Can a property owner use self-help to stop damage from a neighbors trees? Please include what you were doing when this page came up and the Cloudflare Ray ID found at the bottom of this page. Tree-related neighbor disputes take many forms, including, most commonly, disputes related to: property damage associated with encroachment of a neighbor's roots or branches onto your property; damage caused by falling trees or branches; or damages for destruction or harm to another's trees. In California, there is no automatic loser pays system like those that exist in other parts of the world. Photograph by Harris & Ewing. 3d 92, 102 n.5.) Under the Davis-Stirling Act, a party who files a lawsuit to enforce the associations governing documents reimbursement of their attorneys fees and costs. In a 2003 decision coming from a federal trial court in California, the court held that blanket rules requiring adult supervision for children under 18 years old using recreational facilities in a community were discriminatory. . Messages posted by HOATalk or other membersare for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship. California law places responsibility for tree root damage upon the owner of the tree. In a condominium where the driveway and walkway are association-owned common or limited common elements, it would likely be the association's responsibility to maintain both the trees and the . A legal nuisance What California law places responsibility for tree root owner use self-help stop! A depth of 18 to california hoa tree root damage inches ( 46-61 cm. in this instance, assuming your documents say,... However, you dont have to be members of a 30 to 36 DBH... 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