698]. At first blush, it certainly seems capable of withstanding a challenge in court. 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. 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. 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. Some trees can be valued at more than $4,000. It sounds like a harsh basis for legal liability, but a property owners insurance usually covers damages caused by roots from a tree on the owners property. Owners of property have the duty to maintain their land to prevent it from becoming a nuisance for neighboring property owners. HOA held meetings, hired tree experts to assess the . San Jose, CA 95123-3328, https://echo-ca.org/wp-content/uploads/2021/12/echo-ca-300x152.jpg, 2023 Echo Executive Council for Homeowners -. The association must be consistent in uniformly enforcing the governing documents. Q: I live in a gated homeowners association. The Court concluded that the trees were a spite fence and a nuisance. 5. HOATalk is not a licensed attorney, CPA, tax advisor, financial advisoror any other licensed professional. General Legal Notice: The content of forum messagesare from the posting memberand have not been reviewed nor endorsed by HOATalk.com. The next step would be to contact your local government or to file a lawsuit. It is the duty of every property owner to maintain their property, including trees, in a safe and hazard free condition. 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. Now What? 5 and authorities cited.). In California, there is no automatic loser pays system like those that exist in other parts of the world. 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. If the encroachment . The answer, unfortunately, is no (except, as is discussed below, you live in an HOA). The claims is that the HOA owns the tree( because the HOA maintains the yards/trees) and has to pay to fix the damage to the driveway. It generally does not matter whether the current property owner planted or maintained the trees. Check us out on the Web at: www.bpelaw.com. This is a letter I propose sending to all homeowners in the association. 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. Other tree owners may not be as successful . The Court equated the trees with a fence. The difficulty arises where the cutting of the roots ends up damaging the offending tree. Such trees should be planted at least 50 feet from any part of a drainage system, and ideally at the end of the system where the soil is less saturated. An HOA maintains the front yard of the homes in the association. However, this argument has not been tested in the courts and is contrary to fairly well-established precedent outside of the association setting. Do I have to compensate my neighbors for damage to their septic tank caused by the spreading roots of a tree on my land? All of the trees are on common property and routinely maintained (the above-ground portion) by the HOA. Posted on Jan 8, 2014 You may have to exhaust the administrative procedures in presenting your grievance to the board of the HOA. For example, several Labor Code statutes award attorneys fees to an employee who prevails. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorneys firm and get authorization to send that information to them. This article is not intended to be legal advice, and should not be taken as legal advice. Can a property owner use self-help to stop damage from a neighbors trees? 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. This website is using a security service to protect itself from online attacks. 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. 3d 92, 102 n.5.) However, your association does have a duty to maintain common areas, and it could be argued that if this duty is not met, you could make a claim. Before getting into the specifics, however, I should start with how one determines who the owner of a tree is. It also ruled that the protections of the Solar Shade Control Act were limited to active solar collectors designed for the specific purposes of the act. This is the case even if the tree's roots may grow into the land of another. General Legal Notice: The content of forum messagesare from the posting memberand have not been reviewed nor endorsed by HOATalk.com. Tree roots have a measurable impact on the concrete all around your home. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. No one would argue that an association should let a two-year-old toddler wander around a swimming pool area, unattended by an adult. 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? Talk to the individual who owns the tree and tell them about the problem. trailer Reno, NV 89521 Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel. info@bpelaw.com In the 1984 case of Kallis v. Sones (208 C.A. 09/21/2015 9:12 AM. (1994) 8 Cal.4th 361.) (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. In a 1984 decision, a Florida appeals court noted that while there was substantial authority to the contrary in other jurisdictions, "the undoubted right of the land owner himself to cut off intruding roots or branches at the property line," precludes a negligence claim. info@bpelaw.com While it may solve your problem, cutting the roots can also weaken a tree and cause it to fall. Please login to post a reply (click Member Login on the menu). Tree roots came under the fence and damaged our landscape drainage pipe, which had to be replaced. California Permanent Encroachment Statute of Limitations. This includes maintaining and preserving landscaping. Determining responsibility for tree removal is often largely decided by the source of the problem. 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. I have emailed it to the HOA Answered in 5 minutes by: Isaac, Esq., Attorney Remember to consider the following: Remember that even though you may prune or cut a tree in good faith, your action can cause damage for which you could be liable. 0000028746 00000 n Unbelievably, the HOA began replacing these trees with their damaging roots with a. Some cities in California have local laws that safeguard "important" trees on both public and private property. The owner of the tree may be responsible for damage caused to a neighbor's property but only if it can be found that the tree's owner failed to properly maintain the tree. If you need legal advice, you should seek the advice of a licensed attorney. And, no matter what kind of common interest development you live in, if its in California, its governed by the Davis-Stirling Act. According to Streets and Highways Code 5610: There are several actions that could trigger this block including submitting a certain word or phrase, a SQL command or malformed data. 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. These are often between neighbors and focused on how trees grow along property lines. Spengler splits her time between the French Basque Country and Northern California. Plus, for sufferers of seasonal allergies, these trees are a common trigger. But after an impasse, the HOA opted to move ahead with plans to remove the trees. The owner of the land encroached upon may abate the nuisance by cutting off the overhanging branches or destroying the encroaching roots. The association said this was inconsistent with the community (invites termites; is a security issue, provides hiding spots for criminals) and moves for removal. 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. They can get under the foundation and raise up the . 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. When someone, like your neighbor, interferes with your right to quiet enjoyment, that neighbor can be held liable for engaging in a private nuisance. 0000004351 00000 n 0000002926 00000 n (J.K., via e-mail). Tree Root Damage, Who is Responsible? News-Press, Community Association Litigation & Covenant Enforcement. damages for destruction or harm to anothers trees. Hopefully you will all be able to figure this out. 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. The concern about not damaging your neighbor's trees and knowing which side of the property line they are on is very significant because the replacement of a full-grown tree can be $15,000 or more. Is the Trees Owner liable for any Damage? If the HOA refuses to pay for your damage, you should consult an attorney. (P.S., via e-mail). Trees whose branches or roots encroach over or on the land of another may constitute a nuisance. type of trees can keep both homeowners and HOAs happy, responsibility for maintaining the common area, DAVIS-STIRLING ACT | ANNUAL DISCLOSURE LIST, Effective Emergency Planning for HOA Communities, Insuring for Disasters: HOA Budgeting and Planning, Unforeseen Conditions and Hidden Costs of Construction Projects. 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. While it may solve your problem, cutting the roots ends up the! An HOA ) an impasse, the HOA refuses to pay for damage! Property owner use self-help to stop damage from a neighbors trees maintain their land to prevent it from becoming nuisance... 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