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. Or, even worse, block a neighbor's view of the ocean? Can a property owner use self-help to stop damage from a neighbors trees? Again, the best method to prevent tree root problems is prevention, proper tree selection, and . Or did the owner trim the tree on his side only and thus render the tree unstable? Photograph or videotape the encroachment both before and after you take action. Top. Regardless, such encroachment can be a source of serious tension between neighbors. The board must then require the homeowner to comply with its governing documents. (1988) 206 Cal.App.3d 92, 101-102 & fn. See letter below. Reno, NV Office: trailer No problem (everyone misspells it!) If a person is selling a home and there is any history of problems with adjacent trees, this should always be disclosed even if there has been no actual physical damage. Such a finding will typically pull in insurance coverage. 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. Click to reveal The concern about not damaging your neighbor's trees and knowing which side of the property line they are on is very significant because the replacement of a full-grown tree can be $15,000 or more. But other times encroaching branches can result in costly damage, such as in the case of branches that have grown into the side of a neighbors home or damaged power/cable lines. Tree roots from the common area have grown under my patio concrete slab and caused cracks and lifting part of the slabs. 0000004351 00000 n In California, a tree blocking light on a neighbor's property is not a legal nuisance. In addition to large maintenance expenses, there is the risk of litigation related to (i) property damage from backups caused by root infested sewer lines, (ii) mold damage and personal injury claims . Civil Code Section 833 states that trees whose trunks stand wholly upon the land of one owner belong exclusively to him, even if their roots grow into the land of another. HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. Other tree owners may not be as successful . Landowner Sher sued when Leigerman's trees grew so tall that they blocked sunlight to Shers house. If you're a member of the local homeowners' association, that may helpcheck the rules about trees and property maintenance and ask the homeowners' association board for help; Since our community is gated, the county does not maintain anything, but my thought is to handle it the same way the local government would if they were responsible. ), Subject:HOA tree root damage my back yard, Posted By AugustinD on 04/01/2022 2:53 PM, Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions ). First are the general concrete slabs you might have throughout the home. 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 another's land. We would like to hear from you if your insurance company imposed some standard of liability for damages caused by tree roots that is contrary to California law. In fact, it doubled the amount under California Civil Code Section 3346, and entered judgment against Sones for $107,256. (Nahrstedt v. Lakeside Village Condominium Assn. This article is not intended to be legal advice, and should not be taken as legal advice. Fortunately, victims of such branch encroachment have a powerful remedy at their disposal: self-help.. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. A frequent source of tension between neighbors arises when the branches of a tree extend onto someone elses property. 10 / 11. The rationale behind this law is that property owners and neighbors should work to solve problems together, rather than jumping into filing lawsuits. (P.S., via e-mail). 5669 Snell Avenue, #249 For over 20 years, the attorneys of BPE Law Group, P.C. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. 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. Overplanting. . Yes, I'm sorry that my response was in bold. startxref 0000029343 00000 n Last year the president obtained a legal opinion from our attorney as to whether or tree roots causing damage to sidewalks, foundations and underground plumbing were the HOA's responsibility. 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. 0000014868 00000 n Monetary damages will include the costs necessary to repair or clean your property, as well as other losses that you can prove were caused by the encroaching branches or roots. 5. 4. The roots can invade common area sewer lines, causing backups into homes. This right is called the right to quiet enjoyment. But more frequently, such encroachment is seen by the affected neighbor as a negative. In an HOA, individual unit owners are typically responsible for their own property, even if the tree causing the damage is owned by the association. I live next to an HOA maintained common area. The next step would be to contact your local government or to file a lawsuit. But after an impasse, the HOA opted to move ahead with plans to remove the trees. Whether beaten by . This is the case even if the tree's roots may grow into the land of another. If you are going to abate an encroaching tree or roots, exercise caution. We all like to look at trees, but sometimes they block views and must be removed. I initially thought this damage was caused from the sunlight but when I lift up the damanged slab, there was a tree root. Property owner Booska had a 40-year-old pine tree whose roots extended into Patel's yard. Remember to consider the following: Remember that even though you may prune or cut a tree in good faith, your action can cause damage for which you could be liable. There are two theories which have been brought before Florida courts in an attempt to hold adjacent property owners liable for damage caused by tree roots or limbs encroaching past the property line, nuisance and negligence. The court also found that the prohibitions based on children of less than a designated age was not the least restrictive means by which the community could protect the health and safety of children and residents, safety would be better served with a proficiency requirement. Owners may call for removal if the tree is blocking their view, is overly messy, or is otherwise difficult to maintain. However, your association does have a duty to maintain common areas, and it could be argued that if this duty is not met, you could make a claim. Unbelievably, the HOA began replacing these trees with their damaging roots with a. disputes with neighbors, especially if one person's tree is causing damage to another's land. By Dale Alberstone, Esq. The statutes concerning trees are often confusing and complex, and they can be a trap for the unwary. A homeowner plants or maintains landscaping in the common area without the written permission of the board (this is usually a requirement in the CC&Rs). California statutory law since 1872 provides that Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.. It awarded a $245,000 contract Oct. 6 to Lake Worth-based Power Group Total Care. It generally does not matter whether the current property owner planted or maintained the trees. info@bpelaw.com the involved people are parties to a contract that contains an attorneys fees and costs provision. Bogle: Smart Beta is stupid. 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. Readers of HOATalk.com should not act on this information without seeking professional counsel. Hopefully you will all be able to figure this out. Va. High Court Breaks New Ground on Tree Liability, Virginia Supreme Court, 4-3, decides about liability for trees falling. And then, even in such cases where damage has occurred, if the offending neighbors tree was damaged during the root removal, the courts in California will conduct a balancing test in assessing whether the removing party acted reasonably under the circumstances. I am only interested in the legal aspect. 0000007353 00000 n from U.C. The roots damage the neighbor's driveway; The tree blocks the otherwise beautiful view; The tree is too tall according to local ordinances; The tree is dripping sap on the neighbor's car; The tree is ugly, dead and rotting; The person should make sure to spell the neighbor's name correctly. Cutting or pruning lower branches and leaving only the growth at the top (known as liontailing) or cutting or pruning inner branches to create growth on the outer tips can also increase the risk of a structurally unsound tree that could topple in wind or rain. If tree roots rupture something like a septic system in a neighbor's yard, there could be claims made against the tree owner. Sending an e-mail through this website does not create an attorney client relationship. 0000002926 00000 n However, an act of God is not always a successful defense from liability particularly if there has been personal injury or significant property damage. Grandona v. Lovdal (1886) 70 Cal. %PDF-1.7 % Some of this damage will be on account of the owner failing to report the problem promptly. The HOA chose improper trees 30 years ago and planted them too close to hardscape and buildings. The Court concluded that the trees were a spite fence and a nuisance. Self-Help. 1. Who Owns the Tree? Tree roots have a measurable impact on the concrete all around your home. California does have a "spite fence" statute that allows a person to sue when a neighbor deliberately and maliciously erects a fence 10 feet or taller to intentionally annoy the next-door landowner. of Real Estate licensee search, California Secretary of State: business searches, Los Angeles Department of Building & Safety, Los Angeles Municipal Code and Zoning Code, Palisades Americanism Parade Association (PAPA). It is the duty of every property owner to maintain their property, including trees, in a safe and hazard free condition. For wrongful injury to a tree, the owner can receive three times the amount of the actual damages. Our association has had a bit of disagreement over this topic too. For example, cutting the tree at the top, usually for an increased view, more light or greater exposure, can structurally harm a tree. I have seen a BOD Member attend an Owner's Special Meeting but it was as an owner and not a BOD Member. 161, 162, Bonde v. Bishop (1952) 112 Cal.App.2d 1, 5-6, Booska v. Patel (1994) 24 Cal.App.4th 1786, 1788, Crance v. Hems (1936) 17 Cal.App.2d 450, 453, Fick v. Nilson (1950) 98 Cal.App.2d 683, 685, But see: Lussier v. San Lorenzo Valley Water Dist. Second, watch out for damages for injury to treesthere are two statutes that can either double or triple damages for injuries to trees or timber on the land of another. Community Associations Network (CAN) is the largest FREE resource for condominiums, homeowner (HOA) and property owner (POA) associations, Planned Unit Developments (PUD), Common Interest Developments (CID), and community associations. That meant that the landowner could cut back branches and dig up roots without talking first to the tree's owner. A: Restrictions aimed at families with children present difficult issues for associations. 4th 1284), the California appellate court reviewed the matter of one neighbor, Sones, who cut down a 70-foot Aleppo pine that grew on the boundary line between the Sones property and the Kallis property, with 41 percent on Kallis' property, and 59 percent on Sones property. Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel. If someone damages or destroys your tree, you can recover for the amount of your actual loss due to the injury or destruction of the tree. Q: My homeowners association requires that children must be at least 16 years old to use any of the communitys amenities without an adult. . Patel severed the roots and Booska sued, claiming that severing the roots had made the tree a nuisance that had to be removed. Talk to the individual who owns the tree and tell them about the problem. Such an argument could perhaps be made by the landowner, or by the manager, but they cannot both be powerless to prevent or control the trespass. According to Streets and Highways Code 5610: For many years, the law in California allowed a landowner to cut back the branches or roots of a neighbor's tree that encroached on their property. What about an Act of God? Today, the old interpretation, approving of self-help measures, has new caveats. If you dont feel comfortable engaging in self-help by removing the encroaching branches and roots yourself, you dont have to do that. Removing a tree that a homeowner wants to remain. If the word "nuisance" leaps to mind, think again. And for destruction of a tree, the law permits an aggrieved party to recover monetary damages: either the cost to replace the tree or the reduction in the market value of the tree owners property as a result of the destruction of the tree. A property owner who finds a neighbor's tree encroaching must first warn or give notice to the tree owner prior to commencing . Trees as structures. 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. 0000002903 00000 n A qualified HOA attorney should be able to figure that out for your HOA Board. The protected tree species vary from one community to another, but, in general, heritage tree designation means the trees are of a certain size, age or species that is important to the community. Patel claimed that they had the right to prune encroaching tree roots back to the property line any way they chose. Pruning lower branches and leaving growth only at the top can also increase the risk of a structurally unsound tree that could topple in wind or rain. Regarding "Neighbor Must Prove Tree-Root Damage" (by Robert J. Bruss, Sept. 10), when branches of a tree overhang or its . The California Supreme Court has made it clear that an HOA has a legal duty to enforce the HOAs governing documents. It does not provide an easement for passive solar collectors, like south-facing windows that warm buildings by letting in more sunlight. Family Handyman. Tree Root Damage An HOA maintains the front yard of the homes in the association. Trees whose branches or roots encroach over or on the land of another may constitute a nuisance. I took a picture to prove the tree root under the cement. Code, 834). Install a root barrier around young trees at a depth of 18 to 24 inches (46-61 cm.) You are correct. . 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. 2. Examples: Reserve issues. 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. If its on the property line, it is deemed to be owned by the owners of both properties. The Court equated the trees with a fence. He's owned the building for 10 years and the tree he's referring to is 40 years old. 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. Reno, NV 89521 They must have a diameter of 10 inches or more as measured at 48 inches above the natural grade. 0000011115 00000 n 5. Which trees should stay and which have to go? Sometimes, the result of such branch encroachment is something positivelike in the case of a desirable fruit tree. Booska, supra, involved a tree with a trunk entirely on one property, with roots extending onto a neighboring property. There are other cases that have upheld restrictions and the law remains unsettled with no bright line as to what a reasonable age cut-off is or whether there are other means of ensuring safety in the community. My son is 15 and uses the pool and the gym regularly to exercise and I dont think I need to be there with him when he does this. In California, trees belong exclusively to the owner of land where the trunk of the tree is located, even if the tree's roots or branches extend into another person's 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. A: A tree that spreads its roots onto a neighboring property, damaging the foundation of someone else's home, is a nuisance. 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And thus render the tree and tell them about the problem did the owner trim the tree at the (! To an HOA has a legal duty to enforce the HOAs governing documents is that owners...