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.
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.
Falling Branches. For more information see "Tree Roots and Falling Branches."
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.