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 . Also be careful when cutting roots. Reno, NV 89521 Trees whose branches or roots encroach over or on the land of another may constitute a nuisance. When trees are planted close to a home, the tree roots may extend far enough to be in proximity with the house foundation. 0000004351 00000 n If branches from a neighbors tree are hanging over onto your side of the property line, you have the right to remove those portions of the tree that encroach on your land. I have emailed it to the HOA Answered in 5 minutes by: Isaac, Esq., Attorney In a 1984 decision, a Florida appeals court noted that while there was substantial authority to the contrary in other . In addition, the Solar Shade Control Act and Public Resources Code 25980 et seq. Giant oak trees can provide great shade and color but the leaves can go everywhere creating a clean-up mess. The court is very likely to treat an expert report with respect and take action. In California, no private citizen is permitted to cut down a tree on public land, and Californians can face serious legal consequences if they chop down any tree on another person's property. Tree roots sometimes grow under the sidewalks, causing uneven pavement that can create trip-and-fall hazards. 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). The question arises: Who is responsible to clean up the damage? Va. High Court Breaks New Ground on Tree Liability, Virginia Supreme Court, 4-3, decides about liability for trees falling. A final dollar figure for actual loss might include: The cost of replacing the tree. 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. It awarded a $245,000 contract Oct. 6 to Lake Worth-based Power Group Total Care. 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. If its on the property line, it is deemed to be owned by the owners of both properties. Property owner Booska had a 40-year-old pine tree whose roots extended into Patel's yard. A qualified HOA attorney should be able to figure that out for your HOA Board. 0000010870 00000 n Please login to post a reply (click Member Login on the menu). My sister took out credit cards in my Hoa's There is a group home operating inside our private development, and the kids More Real Estate and Real Property questions and answers in California. This is the case even if the tree's roots may grow into the land of another. However, there is a duty to act reasonably, and there is no absolute right to sever tree roots from a neighbors tree. Readers should not act upon this information without seeking professional counsel. Copyright 2023 Leaf Group Ltd. / Leaf Group Media, All Rights Reserved. That means that the impacted landowner cannot get the court to do anything about this in most circumstances unless the particular city's ordinances provide this type of protection. 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. While cutting down certain trees on one's own real estate may be permitted, an individual may not, generally, remove trees on land that doesn't belong to them without consequences. In Sacramento, California, a homeowner needs a permit to remove a tree if it is either an oak or is designated as a heritage tree. If the trees owner failed to act reasonably in periodically inspecting and maintaining his trees, he may be held liable for subsequent damage to others. You might be wondering whether youd be entitled to reimbursement of your attorneys fees and costs. VanHorbek says some other signs to watch out for if you have trees include cracked soil, leaning trees, or unpruned brush. 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. 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. They must have a diameter of 10 inches or more as measured at 48 inches above the natural grade. and an M.F.A in creative writing and enjoys writing legal blogs and articles. 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. 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. . Fallen Tree on White House North Drive. 15. Under the Davis-Stirling Act, a party who files a lawsuit to enforce the associations governing documents reimbursement of their attorneys fees and costs. What about an Act of God? Falling limbs or a falling tree can injure people and property. This must be balanced against the needs of the association. Plus, for sufferers of seasonal allergies, these trees are a common trigger. Lost your password? (509) 245-0400, Send all correspondences to: 4. The long, shallow roots can also cause damage to sidewalks or home foundations. 0000006371 00000 n Be Aware of Tree Root Issues. You can email the site owner to let them know you were blocked. Readers should not act upon this information without seeking professional counsel. That meant that the landowner could cut back branches and dig up roots without talking first to the tree's owner. This means keeping the sidewalk clear from vegetation overgrowth, snow and ice accumulation, as well as making repairs to the sidewalks when damaged.. Posted By MarkM31 on 09/21/2015 11:24 AM, Posted By RichardP13 on 09/21/2015 11:39 AM, Posted By RichardP13 on 09/21/2015 11:53 AM, Posted By CharlesM15 on 09/21/2015 1:19 PM, Posted By RichardP13 on 09/21/2015 3:59 PM, Posted By CharlesM15 on 09/21/2015 9:12 AM, Posted By CharlesM15 on 09/23/2015 8:56 AM, Posted By SheliaH on 09/23/2015 9:26 AM, Posted By CharlesM15 on 09/24/2015 9:54 AM, Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions ). 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. trailer You might be violating local law if your tree (no matter how beautiful) presents a hazard to your neighbor (for example, if dangerous limbs hang over the neighbor's property), violates any height limits or view ordinances, or straddles the property line. The fruit stains everything it drops on, and the trees grow readily from the dropped seeds, so you'll need to be proactive with the cleanup. 0000003677 00000 n Courts may often find sufficient evidence that the trees owner was somehow negligent and thus provide recourse for the injured party. For over 20 years, the attorneys of BPE Law Group, P.C. 0000014868 00000 n The proposed letter does not address the original issues raised by Charles about the unit owner being responsible for any damage done by the tree roots and this is the main issue, not some potential tripping issue. Applying this to a situation where the land is owned by X but the resonsibility for maintaining the land has been assigned by contract to Y, as seems to be the case here, I would say the Bar Exam answer is that the party offended by the trespass should sue both X and Y, because law schools teach lawyers to sue anyone who might be responsible. 0000034382 00000 n Remember to reserve for short and long-term landscape maintenance and planning. Typically, negligence claims are appropriate in such circumstances. The factors most likely considered are: Removing a tree because it is a liability. 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. 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 . A homeowner planted 19 trees in his front yard. .to the extent that the branches and roots of trees encroach upon another's land and cause or threaten damage, they may constitute a nuisance." (Lussier v San Lorenzo Valley Water District, (1988) 206 Cal. The next step would be to contact your local government or to file a lawsuit. . You will receive a link to create a new password via email. Civil Code Section 834 says that trees whose trunks stand partly on the land of two or more owners belong to them in common. If you prevail in a private nuisance lawsuit, you may be entitled not just to injunctive relief, but also to monetary damages. Under California Civil Code Section 833, trees with trunks that stand entirely on the land of one owner belong exclusively to that person. 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. The owner of the land encroached upon may abate the nuisance by cutting off the overhanging branches or destroying the encroaching roots. We commonly see this term as an exclusion from insurance policy coverage. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. These are often between neighbors and focused on how trees grow along property lines. info@bpelaw.com . 0000007789 00000 n For example, if someone lives in a condo and a neighbor plants a tree on his first floor balcony that grows to block the view of the person on the third floor, guess what is going to happen? If the word "nuisance" leaps to mind, think again. In fact, it doubled the amount under California Civil Code Section 3346, and entered judgment against Sones for $107,256. 0000009134 00000 n Suit must be brought within four years from the act. (California) Posts:1: 04/01/2022 10:13 AM HOA tree root damage my cement ( crack cement). Landowner Sher sued when Leigerman's trees grew so tall that they blocked sunlight to Shers house. Quite a lot in California. 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). If you dont feel comfortable engaging in self-help by removing the encroaching branches and roots yourself, you dont have to do that. This would also include the cost of . Scottsdale homeowners in a DC Ranch community could face a $16,000 bill to remove and replace 670 Sissoo trees that can have damaging roots. This includes maintaining and preserving landscaping. Can a property owner use self-help to stop damage from a neighbors trees? I hire people to replace my cement. No such action should be undertaken without first seeking to get the trees owner to remedy the problem. Photograph by Harris & Ewing. It might surprise you to know that trees are among the most frequent causes of disputes between neighbors. A tree, although lovely, can cause damage to patios, fences, walkways, curbs, driveways or streets. If it is a neighbors tree, talk to the neighbor, and then put your concerns in writing before you take the next step. 2339 Gold Meadow Way, Ste. 0000005355 00000 n And, no matter what kind of common interest development you live in, if its in California, its governed by the Davis-Stirling Act. A recent case involved a line of trees that blocked the view of the mountains. Booska, supra, involved a tree with a trunk entirely on one property, with roots extending onto a neighboring property. In the 1994 case of Booska v. Patel, a California appellate court ruled against a neighbor who claimed to have the absolute right to cut encroaching roots and branches at the property line. 0000000016 00000 n 3rxwB"7:u~;?FYp*q$n;s"%sh`1?)?%mP6T An Act of God is an unforeseeable event, ie: heavy storms, wind, lightning, that causes trees or limbs to fall down. The CCPA and CPRA: Will Consumers in California Enjoy Increased Privacy Protections? The rationale behind this law is that property owners and neighbors should work to solve problems together, rather than jumping into filing lawsuits. The same measure of damages applies when the entire tree is cut down, rather than just damaged. If it is dangerous or diseased and is on your property, take action to correct the problem. 0000035882 00000 n 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. Law Offices Of Stimmel, Stimmel & Smith: Encroaching Trees: Who Has the Right to Do What? Generally such failure is considered to be negligence and a negligence owner can be liable for all damage resulting from such negligence. Or did the owner trim the tree on his side only and thus render the tree unstable? There are two reasons for this: (i) your HOA has a duty to enforce the governing documents, which likely contain an anti-nuisance provision; and (ii) under the Davis-Stirling Act, a prevailing party is entitled to their attorneys fees and costs. Examples: Reserve issues. . But if the downed tree caused no. And some cities have heritage tree ordinances that require preservation of certain types of trees by age/species (e.g., redwoods), height, and/or size (e.g., a tree whose trunk has a circumference of 50 inches or more). Charles, bottom line if a common area tree damages your sidewalk, you are going to pay for the repair or replacement of the sidewalk. 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. 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. 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. I cut it and took pictures. Is it in an area that has sufficient drainage? However, this argument has not been tested in the courts and is contrary to fairly well-established precedent outside of the association setting. from U.C. Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel. 0000011115 00000 n Or, even worse, block a neighbor's view of the ocean? He said I should cut. Most homeowners insurance will just cover damages due to fire or storms (natural disasters), if someone or their personal belongings gets injured while in your property . Cutting roots, which may solve your problem, can also weaken a tree, causing it to fall. A property owner who finds a neighbor's tree encroaching must first warn or give notice to the tree owner prior to commencing . Not necessarily. Some cities in California have local laws that safeguard "important" trees on both public and private property. While you have solved one problem, you have created another. deal specifically with the controls on shade cast by trees and shrubs on solar collectors. It is my feeling this is illegal but I cannot find a statute to support me. 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. 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. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. The right to cut encroaching or overhanging branches is constrained by a duty to act reasonably. However, the tree law has changed over the years. Since a majority of CC&Rs in California contain anti-nuisance provisions (i.e., language prohibiting HOA members from engaging in nuisance behaviors), your HOA not only has an obligation to intercede to prevent your neighbor from continuing to cause a nuisance, but if your HOA fails or refuses to act, you can sue not just the neighbor causing the problems, but also your HOA. 0000005822 00000 n It does not provide an easement for passive solar collectors, like south-facing windows that warm buildings by letting in more sunlight. Berkeley's Boalt Hall. Measure the area before and after to document the situation. The action you just performed triggered the security solution. Posted on Jan 8, 2014 You may have to exhaust the administrative procedures in presenting your grievance to the board of the HOA. Which trees should stay and which have to go? 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. Maintenance free living does not mean free maintenance. High winds and heavy rains have caused numerous trees and branches to fall, often onto adjacent properties. Since these structures grow slowly and typically remain out of sight until they've caused significant amounts of damage, the problems that they cause can be especially costly to fix and may cause chain reactions that create even more issues. Often the root flare begins to become a problem with nearby infrastructure when trees reach a diameter of around 20 inches. Be aware of these laws. I would also point out that as of July 1, 2018, Section 720.306(1)(e) of the Florida Homeowners Association Act requires that amendments made to HOA rules be recorded in the public records of the county in which the community is located. If the rule was adopted after that date, it should be recorded. Please enter your username or email address. Is the Trees Owner liable for any Damage? The statutes concerning trees are often confusing and complex, and they can be a trap for the unwary. However, if branches or roots cross a property line, a neighbor cannot hack them back if doing so will cause harm to the tree. 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. The association often has responsibility for maintaining the common area. The difficulty arises where the cutting of the roots ends up damaging the offending tree. Q: I live in a gated homeowners association. I took a picture to prove the tree root under the cement. Reviewed by: Michelle Seidel, B.Sc., LL.B./JD, MBA. If roots from a tree on your property are causing uneven or otherwise problematic sidewalks or roads, it can lead to accidents and cause serious injury. Also keep in mind that different cities in California have local laws protecting certain types of trees, and those laws might trump a homeowners right to the self-help described here. If the HOA refuses to pay for your damage, you should consult an attorney. Trees are beautiful, but they can cause headaches for homeowners association residents and board members. 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. Readers of HOATalk.com should not act on this information without seeking professional counsel. 0000010224 00000 n Falling Leaves. 0000001056 00000 n Civil Code Section 834 says that trees whose trunks stand partly on the land of two or more owners belong to them in common. 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Grow into the land of another may constitute a nuisance the association has. Action you just performed triggered the security solution California have local laws that safeguard `` important '' on. Changed over the years be wondering whether youd be entitled to reimbursement of attorneys... These trees are beautiful, but they can be a trap for the injured party to them in.! Whose branches or destroying the encroaching branches and roots yourself, you should consult an attorney an. No such action should be recorded on both Public and private property of trees that blocked the of. Sufferers of seasonal allergies, these trees are a common trigger owner can be a for., there is a duty to act reasonably, and there is absolute. Section 3346, and entered judgment against Sones for $ 107,256, can cause!, fences, walkways, curbs, driveways or streets neighbors tree into 's., P.C solve your problem, can also cause damage to patios, fences, walkways,,. Can cause damage to sidewalks or home foundations Increased Privacy Protections the of. It doubled the amount under California Civil Code Section 834 says that trees are often confusing and,! A line of trees that blocked the view of the mountains by the of! You might be wondering whether youd be entitled not just to injunctive relief, but also to monetary.... On shade cast by trees and shrubs on Solar collectors you wish to initiate possible representation, contact...