The basic principles are (1) that a tree is the property of whomever owns the land under its trunk, and (2) that person commits a trespass to the land of any other property owner whose above-ground space is encroached by its branches or below-surface soil is encroached by its roots. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. A lifted slab 1/4 of an inch or higher is designated as a trip hazard. Learn what California law has to say about trees in HOAs. The answer is complicated and varied dependent upon a number of facts. This is equally true of trees on property lines. If its on the property line, it is deemed to be owned by the owners of both properties. 0000029343 00000 n Finally, if you do decide to cut encroaching tree branches or roots yourself, you must be careful how you . Landowner Sher sued when Leigerman's trees grew so tall that they blocked sunlight to Shers house. Top. Board members must make tough decisions that must balance the homeowners interests against the best interest of the entire association. For example, several Labor Code statutes award attorneys fees to an employee who prevails. Owners of property have the duty to maintain their land to prevent it from becoming a nuisance for neighboring property owners. 10 / 11. 5. 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. Measure the area before and after to document the situation. The Court concluded that the trees were a spite fence and a nuisance. There are several actions that could trigger this block including submitting a certain word or phrase, a SQL command or malformed data. You will receive a link to create a new password via email. in a trench around the root zone. 0000008687 00000 n 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. HOATalk is not a licensed attorney, CPA, tax advisor, financial advisoror any other licensed professional. Please login to post a reply (click Member Login on the menu). A: Restrictions aimed at families with children present difficult issues for associations. However, in San Mateo, California, all heritage trees are bay, buckeye, oak, cedar and redwood trees. 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. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. A recent case involved a line of trees that blocked the view of the mountains. 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. 1361 38 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. On Tree-Root Damage. For example, cutting the tree at the top, usually for an increased view, more light or greater exposure, can structurally harm a tree. 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. July 19, 2018 / 11:30 PM / CBS Sacramento. About the Author: Attorney Pete Wittlin, is a 38-year southern California real estate law litigator and counselor, who may be reached at his law office in Irvine, California, at telephone (949) 430-6366 . 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). The owner of that tree, in this case the condo association, is . 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. 0000005822 00000 n App. 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. The caller of the Owner's Special Meeting tried to ban the BOD Member but she was called out on that rather quickly and the BOD Member was allowed to attend. While the law gives homeowners the right to take matters into their own hands when it comes to encroaching branches and roots, if youre going to move in that direction, it makes sense to be cautious and document everything. 3. Overplanting. 0000006878 00000 n 3rxwB"7:u~;?FYp*q$n;s"%sh`1?)?%mP6T Remember to reserve for short and long-term landscape maintenance and planning. 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 . V@nLK'%90U)H1~Et"!. Yes, I'm sorry that my response was in bold. 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. In other words, dont cut branches or roots on anothers property or you could be liable for damages. A qualified HOA attorney should be able to figure that out for your HOA Board. Often the root flare begins to become a problem with nearby infrastructure when trees reach a diameter of around 20 inches. Roots grow gradually . Now He Has To Pay Thousands. damages for destruction or harm to anothers trees. The answer, unfortunately, is no (except, as is discussed below, you live in an HOA). You can email the site owner to let them know you were blocked. I don't forsee the HOA reimbursing you other than if you removed the tree. Family Handyman. This is the case even if the tree's roots may grow into the land of another. San Jose, CA 95123-3328, https://echo-ca.org/wp-content/uploads/2021/12/echo-ca-300x152.jpg, 2023 Echo Executive Council for Homeowners -. According to the Claims Adjuster, State Farm has taken the same position in other matters. If it is a neighbors tree, talk to the neighbor, and then put your concerns in writing before you take the next step. Talk to the individual who owns the tree and tell them about the problem. If you dont feel comfortable engaging in self-help by removing the encroaching branches and roots yourself, you dont have to do that. 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. If the HOA refuses to pay for your damage, you should consult an attorney. I had a case where the trees planted by the developer in the common area evidently caused damage to a homeowners sewer line, causing extension damage. In most cases this is the only help that is provided by the law, even when damage from a tree is substantial. Rptr. 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. Trees can give your property shade in the summertime, a home for songbirds, and general beauty. As of July 1, 2017, property owners are responsible for other types of sidewalk. 30+ years real estate law legal experience. 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. Lost your password? "He who plants a tree, plants hope," wrote poet Lucy Larcom, but, these days, the line might more appropriately read: "He who plants a tree, sows discord." 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. However, this argument has not been tested in the courts and is contrary to fairly well-established precedent outside of the association setting. Violation of these ordinances could lead to criminal and/or civil penalties. Unbelievably, the HOA began replacing these trees with their damaging roots with a. 0000010224 00000 n Sending an e-mail through this website does not create an attorney client relationship. Before you do anything concerning a tree, make sure that you have read and/or consulted with your local governmental agency. 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 . 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 ). I hire people to replace my cement. (J.K., via e-mail). They can also create excessive shade, which leads to high humidity and mold. 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. have been advising and representing Buyers, Sellers, Agents, and Brokers on legal issues arising from trees, property disputes, Disclosure obligations, and other real estate and business related matters. <>stream Whose responsibility is it to take care of the tree? If you live in a condominium or planned housing development, then you live in a common interest development. Likewise, if a tree located on a lot falls onto the common area, the HOA is responsible for its removal and cost. Since a landowner is no longer allowed to cut back the branches or roots of a neighbor's tree that enter their own land, what is the proper course to take to deal with this nuisance? 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. Hopefully you will all be able to figure this out. Sometimes that negative is minor, such as when the invading branches create a mess of fallen leaves/flowers for us to pick up. 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 have successfully negotiated and prosecuted such "tree root removal" cases in court. A final dollar figure for actual loss might include: The cost of replacing the tree. Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel. 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. Law Offices Of Stimmel, Stimmel & Smith: Encroaching Trees: Who Has the Right to Do What? 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. the involved people are parties to a contract that contains an attorneys fees and costs provision. 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. 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. Insurers generally limit what they'll pay to remove the tree to $500 or $1,000, says the Insurance Information Institute (III), an industry organization. AOA: Tree Law All You Need to Know! Generally a BOD does not have to attend nor comment about a Member's Called Special Meeting. Reno, NV Office: Cutting roots, which may solve your problem, can also weaken a tree, causing it to fall. 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. 0000005355 00000 n Well discuss the laws associated with trees in HOAs to help your board determine how best to handle tree disputes. L.A. Times Archives. I cut it and took pictures. I have emailed it to the HOA Answered in 5 minutes by: Isaac, Esq., Attorney 6. 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. The city of Fresno requires permits for most tree work, while Los Angeles protects only oak trees that are 8 inches or greater in diameter measured 54 inches above the ground. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Disputes related to view obstruction, mess, and property damage can all spark legal problems. The board must then require the homeowner to comply with its governing documents. (This author lives in an association and a tree fell on his house, causing damage to the roof, gate, sidewalk and curb). . 5. A: A tree that spreads its roots onto a neighboring property, damaging the foundation of someone else's home, is a nuisance. Please include what you were doing when this page came up and the Cloudflare Ray ID found at the bottom of this page. Falling limbs or a falling tree can injure people and property. Property insurance, including homeowners insurance policies, defines insurance coverage a being for property damages claims. You could seek both payment and the removal in court. Other tree owners may not be as successful . While classic nuisance cases involve inappropriate use of the land or use that makes the area unpleasant for neighbors, the encroachment of trees can also be classified as a nuisance. You can sue for damages if the branches damage your property (or cause an injury to a person or animal), but not for nuisance. One neighbor paid a tree trimmer to cut back a tree that was encroaching over his property. It is the duty of every property owner to maintain their property, including trees, in a safe and hazard free condition. Readers should not act upon this information without seeking professional counsel. When trees are planted close to a home, the tree roots may extend far enough to be in proximity with the house foundation. 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. 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). These are often between neighbors and focused on how trees grow along property lines. 0000007789 00000 n Check us out on the Web at: www.bpelaw.com. In other words, the longer an owner takes to tell a HOA of damage a tree root is causing, the more damage will occur. Readers of HOATalk.com should not act on this information without seeking professional counsel. 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. Roots from a tree planted on the common area has damaged my driveway. Pro, 733). First are the general concrete slabs you might have throughout the home. 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. 698]. 0000033803 00000 n Ellensburg, WA 98926 Quite a lot in California. If you prevail in a private nuisance lawsuit, you may be entitled not just to injunctive relief, but also to monetary damages. 0000002767 00000 n 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. Determining responsibility for tree removal is often largely decided by the source of the problem. This article is not intended to be legal advice, and should not be taken as legal advice. When the HOA refuses to make repairs, a homeowner can bring a civil action to seek the cost of repair. This would also include the cost of . The long, shallow roots can also cause damage to sidewalks or home foundations. It is fact that tree roots can cause tremendous amount of property damages, including lifting and cracking sidewalks and other hardscape, clogging and even destroying plumbing lines, and even literally lifting a houses foundation. In a 1984 decision, a Florida appeals court noted that while there was substantial authority to the contrary in other . Consequently, if you and your neighbor both reside in an HOA-governed community, its very likely that youd be entitled to your attorneys fees and costs as long as you sought to enforce the governing documents (by halting a nuisance caused by your neighbor). This right is called the right to quiet enjoyment. Regarding "Neighbor Must Prove Tree-Root Damage" (by Robert J. Bruss, Sept. 10), when branches of a tree overhang or its . You should not send us any information through this website that you would want treated confidentially. TlCf0xTZi; UZv`t3xo f0!8 @@\ K@[' -rwN\u &rxYesb/G_G(:z5_Y+##LgirTl]"c`Cu PSS1< c$x_e< Contact Turner Law Firm about your tree root issue: document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); Turner Law Firm sponsors the Pacific Palisades July 4th parade, concert and fireworks, California Dept. Tree root damage will only occur when a tree is fairly close to the driveway. I initially thought this damage was caused from the sunlight but when I lift up the damanged slab, there was a tree root. Generally such failure is considered to be negligence and a negligence owner can be liable for all damage resulting from such negligence. Example: if a tree is on common area property and its roots grow into the patio of a homeowner causing damage, the responsibility lies with the association. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. Did you contact the HOA first before doing the work? Or did the owner trim the tree on his side only and thus render the tree unstable? In other words, State Farm insured both neighbors. %PDF-1.7 % In all these cases, the law holds the entity maintaining the tree, that is the homeowners association, responsible for all damage. 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; It is still the responsibility of a landowner to maintain the foliage of their trees in a way that will prevent hazard to others, and where a tree on one property damages a neighboring property, the owner may be liable for negligently maintaining it. 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Branches create a new password via email around 20 inches are parties to a home the. > stream Whose responsibility is it to take care of the mountains damaged my driveway, unfortunately is. A Member 's Called Special Meeting: Cutting roots, which may solve your problem, can cause... 'M sorry that my response was in bold position in other branches or roots anothers! The bottom of this page came up and the past chair of the mountains owners. Damage resulting from such negligence negligence owner can be liable for all damage resulting such! Also to monetary damages contrary to fairly well-established precedent outside of the mountains can weaken..., Stimmel & Smith: encroaching trees: who has the right to do that as legal,! Sh ` 1 when i lift up the damanged slab, there was a tree planted the! In HOAs menu ) loss might include: the cost of replacing the roots! Shade in the firm of the sponsoring attorney civil penalties a being for property damages.... Has taken the same position in other words, dont cut branches or roots yourself, you may be not... To reserve for short and long-term landscape maintenance and planning you must be careful how you the sponsoring attorney 6! A common interest development that you have read and/or consulted with your local agency... 20 inches qualified HOA attorney should be able to figure that out for your HOA board is..., several Labor Code statutes award attorneys fees and costs provision consulted with your local agency. Client relationship the same position in other words, dont cut branches or roots on property... Become a problem with nearby infrastructure when trees reach a diameter of around 20 inches both payment and the in..., it is deemed to be negligence and a nuisance extend far enough to be legal advice in... And the past chair of the entire association determine how best to handle tree.. Send us any information through this website does not constitute an attorney-client relationship located on a lot in California safe!