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Developer Trees. When developers create a new project, they overplant the property to make it attractive to buyers. Those trees eventually grow up. When they do, their roots invade sewers, lift sidewalks, crack building foundations, and drop leaves that clog gutters and drains. They can also create excessive shade, which leads to high humidity and mold.

Potential Litigation. 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, and (iii) slips and falls from lifted sidewalks--including public sidewalks surrounding your development.

In Alpert v. Villa Romano HOA, a woman suffered injuries when she tripped over a portion of the city's sidewalk that had been raised by tree roots. The offending roots came from one of the association's trees. The association had known of the sidewalk's condition and took no action to warn pedestrians of the dangerous condition or to repair it. The trial court found in favor of the association. On appeal the decision was reversed. The Court of Appeal noted that under Civil Code § 1714, persons (including associations) are responsible for injury to others occasioned by their want of ordinary care or skill in the management of their property.

Licensed Contractors. The California Business and Professional Code requires a contractor's license to trim or prune trees over 15 feet in height. (B&P Code § 7026.1(d).) Whenever hiring a landscaping company to trim the association's trees, boards must make sure the company is licensed and insured, including workers' compensation insurance. Their license can be verified online through the Contractor License Board.

Can Members Override the Board? Members do not have the power to override the board's decision. As with civil governments, a member's voting rights are limited. If the membership is truly unhappy with a board's decision, it has the power to recall the board and elect directors who agree with their wish to keep all the trees. Even so, once new directors are seated, they immediately become fiduciaries. This imposes a legal obligation to act in the best interests of the association. Sometimes that means making decisions that are unpopular--such as removing trees.

Recommendation: From time to time boards need to remove trees to protect sewers, sidewalks and foundations, and minimize potential litigation. It is cheaper to reduce the number of trees than to constantly repair damaged infrastructure and defend against lawsuits. Members should not have a knee-jerk reaction against tree removal. They should work with the board to find the right balance of trees in the development--both the kind and number of trees, as well as their placement. Another solution that can be investigated is the installation of root barriers. They offer some protection against damage to sidewalks but not against invasion of sewer systems.

Negligence. As a rule, owners are responsible for injury caused to others by their want of ordinary care or skill in the management of their property. If the tree belongs to the association, the board is responsible for properly caring for the tree so as to prevent any foreseeable damage to the neighboring property.If the tree has dead or dying branches and the board was warned they needed pruning, and the board fails or refuses to do so, and a dead limb crashes into the neighbor's house, the association is likely liable. If there is nothing wrong with the tree, you are not required to remove a healthy limb just because the neighbor dislikes it.

Neighbor Self-Help. A neighboring owner may cut any encroaching branches or roots up to the boundary line as long as he does so in a reasonable manner that does not cause harm to the tree. (Booska v. Patel (1994) 24 Cal. App. 4th 1786, 1790-1791, adjoining owner may cut back encroaching growth but cannot do so in a manner that causes foreseeable damage to the tree or another’s property; Bonde v. Bishop (1952) 112 Cal. App. 2d 1, 5-6, adjoining owner may remove limbs or roots of a neighboring tree that extends upon his property up to the boundary line). Aside from the self-help method of cutting any offending branches or roots, the adjoining owner may also seek damages or injunctive relief if the encroaching branches or roots cause injury to his property.  (Fick v. Nilson (1950) 98 Cal. App. 2d 683, owner of land injured by another owner’s tree branches and roots that encroach upon his land may cut them or sue for damages and abate the nuisance; Stevens v. Moon (1921) 54 Cal. App. 737, tree roots that extend into another owner’s land and injured his crops may be cut by that owner to the extent the roots encroach upon his land; adjoining owner may recover damages for any injuries sustained from the encroaching roots).

Nuisance. Even though the neighboring property has sustained no injury by the overhanging limb, branches and roots that intrude onto the property of another are considered a nuisance and your neighbor may abate the nuisance by cutting the offending branches and roots at the boundary line--so long as he acts reasonably not to seriously damage your tree. (Civ. Code § 3346.)

Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil…So, it would seem, he may have abated the roots projecting into his soil, at least if he has suffered actual damage thereby. (Grandona v. Lovdal, (1886) 70 Cal. 161, 162.) 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. App. 3d 92, 102 n.5.)

Falling Leaves. A neighbor might also be unhappy about falling leaves from the association's tree. If so, he cannot demand the association clean up the leaves, so long as the association reasonably maintains its tree.

Sewers. See Investigating Sewer Backups

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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