If the encroachment . 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 . 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). tree. 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. 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. Homeowners from Maine to California struggle with the slow-motion havoc wreaked by tree roots. However, in general the damaged party still must prove that the owner was negligent most often failure to properly maintain the tree. They must have a diameter of 10 inches or more as measured at 48 inches above the natural grade. Check us out on the Web at: www.bpelaw.com. The property owner sued, and the court ruled in their favor, awarding damages for the replacement value of the tree, as well as the tree's loss of aesthetic value. 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. He's owned the building for 10 years and the tree he's referring to is 40 years old. 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? Sometimes, the result of such branch encroachment is something positivelike in the case of a desirable fruit tree. 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. Remember to reserve for short and long-term landscape maintenance and planning. 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). AOA: Tree Law All You Need to Know! 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. The association often has responsibility for maintaining the common area. endobj Tree disputes between neighbors in recent years have lead to lawsuits and even assaults. 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. Not only would such action constitute a trespass, which has criminal implications, but such conduct would leave the homeowner open to significant liability (Code Civ. If its on the property line, it is deemed to be owned by the owners of both properties. Under California law, an. Readers should not act upon this information without seeking professional counsel. Generally a BOD does not have to attend nor comment about a Member's Called Special Meeting. Today, the old interpretation, approving of self-help measures, has new caveats. 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. 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. info@bpelaw.com Tree roots are not strong enough to crush foundations or even sewer pipes and can be turned away with barriers. Of course, it all depends on the laws in the city and state where the tree is located. 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. 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. Every case requires review of specific facts and history, and a formal agreement for service. The court is very likely to treat an expert report with respect and take action. 0000002767 00000 n Did you contact the HOA first before doing the work? 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. The action you just performed triggered the security solution. The board must then require the homeowner to comply with its governing documents. Patel claimed that they had the right to prune encroaching tree roots back to the property line any way they chose. California Permanent Encroachment Statute of Limitations. %PDF-1.7 % Again, the best method to prevent tree root problems is prevention, proper tree selection, and . Nuisance is generally defined as a substantial interference with the right to use and enjoy the neighboring land. Regarding "Neighbor Must Prove Tree-Root Damage" (by Robert J. Bruss, Sept. 10), when branches of a tree overhang or its . {%[e #L61bCJm{' vG9wP!w;b ;POy|A|-SlZm=>7u%?'-FV%DVKERCqT}()eZgecG/EY3L6tm!Ci5}r4:&m}x{~1%6xXimtU]qSD>qoFTso.EW%J4/c?_:/Zvq![QEzH&q2|96d$4O{0A+gC\d{:KkUS;@ V+I.]iFw8:0s@w\CYLM7GV=eVE(#EcIUjzU*0&C*F4 WFQ&0k77G"aDS1R qv`\$pdS-@am6-I pru5}[Ly}jf General Legal Notice: The content of forum messagesare from the posting memberand have not been reviewed nor endorsed by HOATalk.com. Bogle: Smart Beta is stupid. info@bpelaw.com You should ask your association to review your concerns with the associations legal counsel and review whether the association should reconsider its policy. HOA held meetings, hired tree experts to assess the . (1994) 8 Cal.4th 361.) This must be balanced against the needs of the association. According to the Claims Adjuster, State Farm has taken the same position in other matters. Trees are constantly debated in communities: some people cant get enough of their beauty, environment, color, and shade; others cant stand their dropped leaves, lumpy roots, and view-blocking canopies. 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. Rptr. See letter below. The 2012 case of Rony v. Costa [210 Cal.App.4th 746] is a good example that might serve as a warning to those who do not act reasonably. I was just demonstrating that many cities hold the adjacent HO responsible for sidewalks even if that sidewalk is not on the deeded property of the HO. Before lifting that ax or chain saw, it's wise to get an overview of California laws regarding trees. 0000024325 00000 n 4. But if the downed tree caused no. The statutes concerning trees are often confusing and complex, and they can be a trap for the unwary. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. A: A tree that spreads its roots onto a neighboring property, damaging the foundation of someone else's home, is a nuisance. In a 2003 decision coming from a federal trial court in California, the court held that blanket rules requiring adult supervision for children under 18 years old using recreational facilities in a community were discriminatory. 0000005355 00000 n Landowner Sher sued when Leigerman's trees grew so tall that they blocked sunlight to Shers house. 2339 Gold Meadow Way, Ste. 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. 0000005663 00000 n A homeowner reasonably expects that its insurer would reasonably settle a claim where the liability is clear and it insured both sides. (Created between 1913 and 1918). KNOW YOUR BOUNDARIES. 0000009575 00000 n This would also include the cost of . 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. In every state, a common-law right exists that allows a property owner to cut the branches and roots of a neighboring tree that is invading their property. 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. Can the association make this kind of a rule? This is equally true of trees on property lines. This is the case even if the tree's roots may grow into the land of another. This is the case even if the tree's roots may grow into the land of another. xref Overplanting. High winds and heavy rains have caused numerous trees and branches to fall, often onto adjacent properties. Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel. 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. Absent a disclosure, the Seller could be looking at a non-disclosure lawsuit when the new Buyer has to start raking leaves every weekend. For example, cutting the tree at the top, usually for an increased view, more light or greater exposure, can structurally harm a tree. However, if branches or roots cross a property line, a neighbor cannot hack them back if doing so will cause harm to the tree. (509) 245-0400, Send all correspondences to: 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. 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. 0000000016 00000 n Well discuss the laws associated with trees in HOAs to help your board determine how best to handle tree disputes. Falling limbs or a falling tree can injure people and property. The owner of that tree, in this case the condo association, is . She holds both an M.A. Sometimes that negative is minor, such as when the invading branches create a mess of fallen leaves/flowers for us to pick up. The Court concluded that the trees were a spite fence and a nuisance. . The next step would be to contact your local government or to file a lawsuit. More Photograph or videotape the encroachment both before and after you take action. If you prevail in a private nuisance lawsuit, you may be entitled not just to injunctive relief, but also to monetary damages. Who is responsible for the repair? 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. As for nuisance, the majority rule in this country, which is followed in Florida, is that the owner of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land because the neighboring owner has the right to trim back roots and branches to the property line. 5 and authorities cited.). For example, was the tree dead or dying from an insect infestation? The association said this was inconsistent with the community (invites termites; is a security issue, provides hiding spots for criminals) and moves for removal. Learn what type of trees can keep both homeowners and HOAs happy. Many of us have enjoyed an orange or lemon gifted to us by the branches of a neighbors fruit tree hanging over our property. I hire people to replace my cement. Under California Civil Code Section 833, trees with trunks that stand entirely on the land of one owner belong exclusively to that person. The branches can only be cut back to the property line. (NOTE: A sponsoring attorney is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page. 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). 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. Different trees have different root systems, so one tree may cause damage from a short distance away while another tree may have an extensive root system and cause damage from further away. Before getting into the specifics, however, I should start with how one determines who the owner of a tree is. This can give an individual a legal cause to sue if a group of trees is planted in a row deliberately to block the neighbor's view. Often the root flare begins to become a problem with nearby infrastructure when trees reach a diameter of around 20 inches. In California, it is forbidden to ruin the aesthetics of the tree or to cause it serious injury by cutting. If you would like a consultation with us, please call our office at (916) 966-2260 or e-mail Steve Beede at sjbeede@bpelaw.com. If it appears that there is potential for harm from the tree's encroachment, a danger to life or property, bring in a tree specialist to confirm the danger. However, tree roots cause damage to foundations in two ways. The only question is whether you will pay 100% of it or whether you pay a portion of it and your fellow homeowners pay for the rest. 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. Is it in an area that has sufficient drainage? While it may solve your problem, cutting the roots can also weaken a tree and cause it to fall. 0000001056 00000 n The trees were ordered removed. 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. Please click the "Accept" button if you understand the forgoing statement and wish to proceed. Does the HOA have responsibility or is this their responsibility since it is on their property? On Tree-Root Damage. 0000033803 00000 n Fortunately, victims of such branch encroachment have a powerful remedy at their disposal: self-help.. 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. Siberian Elm 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. One thing that all common interest developments have in common is that they are governed by an association of members (i.e., the owners) who enjoy the use of shared common areas and amenities. I took a picture to prove the tree root under the cement. The court found that the cost of replacing the tree was $53,628 and refused to limit the award to 41 percent of that amount. Good luck with calling a special homeowner's meeting! 10 inches or more as measured at 48 inches above the natural grade fallen leaves/flowers us. Videotape the encroachment both before and after you take action in a private lawsuit... 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