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Common area tree root damage

Started by CharlesM15 • 46 replies • 7289 views

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CharlesM15 (California)
Posts: 25
Posted:
Our board has recently proposed a rules change that requires individual homeowners to be responsible if a common area tree's roots uplift the common area sidewalk in front of your home as well as patio or any other damage.
It is my feeling this is illegal but I cannot find a statute to support me.
It just makes common sense that an individual homeowner who has NO control over common area trees would not be responsible for the damage they do.
If anyone has input it would be greatly appreciated.
SheliaH (Indiana)
Posts: 6,964
Posted:
This is a proposal, not written in stone, so have you discussed your concerns with the Board?

We have a lot of trees in my community and I suspect your Board has run into the same problem as we have. Over the last 10 years or so, we've seen more sewer line damage from tree roots and trip hazards from roots uplifting sidewalks and other areas because the developer planted them everywhere, not realizing (or caring?) that 5 foot sapling would be over 30 feet high 10 or 20 years later - and a tree's roots are twice as long as the tree is tall.

We had a certified arborist walk through our community this year to take inventory of what we had and what were the problem trees - and ended up spending about $12K to cut down several of them. This was a continuation of a project started last year and one board member recently commented, we'll have to keep this up for the next 5-10 years because most of the trees planted in 1972 when our community was established are at or very close to the end of their useful life.

Now, if these are common area trees, I don't think your board can simply turn over responsibility to the homeowners and that's probably why they made this proposal. If the homeowners don't want the responsibility, they may have to say bye bye to a problem tree. You may want to ask what has prompted the rule - the dollars and cents behind the proposal may change your mind or at least come up with an alternative suggestion, if available.

Indeed, one of the homeowners in our community balked at seeing the 31 year old tree in front of his house cut down - even through the thing is beginning to cause problems in the foundation! The Board overruled him and several of us at that meeting pointed out it's more important to protect the building - and besides, this guy and his wife didn't plant the tree, didn't prune it or otherwise care for it all these years and because the Association covers the building structure of the units (we're a townhouse community), it would have to cover the foundation damage. Given our delinquency problem, the Association has to be prudent with its expenses, so why hang on to a tree that will cause more damage down the road?
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
DouglasK1 (Florida)
Posts: 2,046
Posted:
Our association has had a bit of disagreement over this topic too. Since our community is gated, the county does not maintain anything, but my thought is to handle it the same way the local government would if they were responsible. In the case of my county, they fix damaged sidewalks and don't push that back on the homeowner.

I did a bit of on-line research, and found that more governments are moving towards requiring adjacent property owner to be responsible. Generally, this seems more prevalent out west, with jurisdictions in eastern part of the country more likely keep the responsibility for sidewalks and not push them on the owners. From what I found, California passed a state law that made owners responsible for adjacent sidewalks statewide (some info here: http://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Library/2014/Spring-Conf/5-2014-Spring-Gerald-Hicks-But-Its-Your-Sidewalk_S.aspx). I don't know if this is binding on HOAs, but does provide some precedent for an HOA to push the responsibility to the owners.
Escaped former treasurer and director of a self managed association.
RichardP13 (California)
Posts: 3,868
Posted:
Charles

The operative legal phrase is "common area". Legally, thee is no way this would stand up in a court of law. The maintenance, upkeep and ultimately, any damage is a shared responsibility among ALL the homeowners.
MarkM31 (Washington)
Posts: 351
Posted:
Quote:
Posted By RichardP13 on 09/21/2015 11:15 AM
Charles

The operative legal phrase is "common area". Legally, thee is no way this would stand up in a court of law. The maintenance, upkeep and ultimately, any damage is a shared responsibility among ALL the homeowners.

Most municipalities have regulations similar to the one that the OP's HOA wishes to implement. So in this regard, Richard is in error
Quote:
As in many other cities, the Seattle Municipal Code requires that adjacent property owners keep their sidewalks in good repair and safe for public travel. This means keeping the sidewalk clear from vegetation overgrowth, snow and ice accumulation, as well as making repairs to the sidewalks when damaged..

MarkM31 (Washington)
Posts: 351
Posted:
Sorry for the bold, no way to edit it
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By MarkM31 on 09/21/2015 11:24 AM
Posted By RichardP13 on 09/21/2015 11:15 AM
Charles

The operative legal phrase is "common area". Legally, thee is no way this would stand up in a court of law. The maintenance, upkeep and ultimately, any damage is a shared responsibility among ALL the homeowners.


Most municipalities have regulations similar to the one that the OP's HOA wishes to implement. So in this regard, Richard is in error
Quote:
As in many other cities, the Seattle Municipal Code requires that adjacent property owners keep their sidewalks in good repair and safe for public travel. This means keeping the sidewalk clear from vegetation overgrowth, snow and ice accumulation, as well as making repairs to the sidewalks when damaged..



Are you serious?
MarkM31 (Washington)
Posts: 351
Posted:
Yes, I'm sorry that my response was in bold.
RichardP13 (California)
Posts: 3,868
Posted:
Mark

Does you local municipal codes apply to HOA's, I know they don't in Los Angeles.

For the OP's Board to try and do what they propose, would require amending the CCRs and who pays for the upkeep of the common area.
RichardP13 (California)
Posts: 3,868
Posted:
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.

Do you think a Board can just create a rule saying from now on any damage that trees planted in the common area are the responsibility of the owner(s).
MarkM31 (Washington)
Posts: 351
Posted:
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. These laws normally apply only to sidewalks on public property, so a fully captured HOA would not neccesarily need to follow these rules. But as I read it, the OP's HOA wants to implement something similar. At first blush, it certainly seems capable of withstanding a challenge in court.
MarkM31 (Washington)
Posts: 351
Posted:
Quote:
Posted By RichardP13 on 09/21/2015 11:39 AM
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.

Do you think a Board can just create a rule saying from now on any damage that trees planted in the common area are the responsibility of the owner(s).

No, a board or city cannot indemnify themselves from this. They can attempt, but not always successfully.

I know many consulting arborists
RichardP13 (California)
Posts: 3,868
Posted:
Mark

Rules have to be "fair and reasonable". The Board would be given the authority by a statement within the CCRs, but the rule can't be in conflict with the CCRs, which I believe, in this case, would be. The only way would be to amend the CCRs. In California, chances are slim and none, with I believe slim has already left town.
MarkM31 (Washington)
Posts: 351
Posted:
Quote:
Posted By RichardP13 on 09/21/2015 11:53 AM
Mark

Rules have to be "fair and reasonable". The Board would be given the authority by a statement within the CCRs, but the rule can't be in conflict with the CCRs, which I believe, in this case, would be. The only way would be to amend the CCRs. In California, chances are slim and none, with I believe slim has already left town.

I realize what you are saying. My point remains that there are similar and widespread laws throughout the US.

And I don't know what the OP's CC&Rs say
CharlesM15 (California)
Posts: 25
Posted:
There can be all types of conversation regarding this but I don't think that has anything to do with it. I am only interested in the legal aspect.
I found the following.

California
CIVIL CODE 
SECTION 829-834 

833. Trees whose trunks stand wholly upon the land of one owner
belong exclusively to him, although their roots grow into the land of
another.

That says to me that the association owns the trees so it is solely responsible for them and the harm they cause.

RichardP13 (California)
Posts: 3,868
Posted:
Charles

What you posted is a start. You belong to an entity called a common interest development (CID). A CID is owned by it's member, which you would be considered one of them.

Common sense would say they couldn't pass such a rule, BUT as we all know, that doesn't always apply.
GenoS (Florida)
Posts: 4,276
Posted:
We have a similar problem. Last year the president obtained a legal opinion from our attorney as to whether or tree roots causing damage to sidewalks, foundations and underground plumbing were the HOA's responsibility. All of the trees are on common property and routinely maintained (the above-ground portion) by the HOA.

I thought it was a waste of money since the answer was pretty obvious: of course the HOA is reponsible. The board was hoping for a longshot opinion that they could use to assign responsibility for these tree root problems to the owners. After they didn't get what they wanted to hear from the attorney they went back to ignoring the problem. Another can kicked down the road.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Charles,

Send a letter to the HOA demanding that they remove their tree roots from under your sidewalk.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Charles,

What you want to look at is "contributory negligence."

In my opinion, if the proposed change is simply a policy resolution, it may not withstand a legal challenge. However, if the proposed change is an amendment to the CC&Rs, then it becomes part of the contract everyone agreed to live by and will likely withstand any legal challenges.

Laws about who is responsible when a tree causes damage are slowly changing.

Here are some links:

TREE LAW
THE “CUTTING EDGE” from CA Legal news Reports

Neighbor Disputes: Trees from findlaw.com

Who’s responsible when a tree falls? from the Washington Post

Do I have to compensate my neighbors for damage to their septic tank caused by the spreading roots of a tree on my land? from nolo

Tree Law: MCLE Self-Study Article from California Lawyer Magazine, March 2002 reprinted on an attorney's website

Va. High Court Breaks New Ground on Tree Liability 2007 Washington Post Article

Richard A. FANCHER v. Joseph B. FAGELLA from the Virginia Supreme Court (case from above article).

Virginia Supreme Court, 4-3, decides about liability for trees falling article about a 2012 ruling

NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By CharlesM15 on 09/21/2015 1:19 PM
833. Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.

That says to me that the association owns the trees so it is solely responsible for them and the harm they cause.


I would not make that leap Charles.

The common area is NOT the "land of one owner." The common area is owned by all of the association members.

And how the responsibility and liability is allocated among those members can be done in many ways.

Sikubali jukumu. Read all posts at your own risk.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By TimB4 on 09/21/2015 3:46 PM
Charles,

What you want to look at is "contributory negligence."

In my opinion, if the proposed change is simply a policy resolution, it may not withstand a legal challenge. However, if the proposed change is an amendment to the CC&Rs, then it becomes part of the contract everyone agreed to live by and will likely withstand any legal challenges.

Laws about who is responsible when a tree causes damage are slowly changing.

Here are some links:

TREE LAW
THE “CUTTING EDGE” from CA Legal news Reports

Neighbor Disputes: Trees from findlaw.com

Who’s responsible when a tree falls? from the Washington Post

Do I have to compensate my neighbors for damage to their septic tank caused by the spreading roots of a tree on my land? from nolo

Tree Law: MCLE Self-Study Article from California Lawyer Magazine, March 2002 reprinted on an attorney's website

Va. High Court Breaks New Ground on Tree Liability 2007 Washington Post Article

Richard A. FANCHER v. Joseph B. FAGELLA from the Virginia Supreme Court (case from above article).

Virginia Supreme Court, 4-3, decides about liability for trees falling article about a 2012 ruling


Take the first case from California. After the case has be ruled on by the courts, Mr. Booska gets mail addressed to Mr. Patel and goes to Mr Patel's house to deliver. While walking to front door, trips on sidewalk raised by his own tree and breaks his arm. What cause of action might Mr. Booska have?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By RichardP13 on 09/21/2015 3:59 PM

Take the first case from California. After the case has be ruled on by the courts, Mr. Booska gets mail addressed to Mr. Patel and goes to Mr Patel's house to deliver. While walking to front door, trips on sidewalk raised by his own tree and breaks his arm. What cause of action might Mr. Booska have?

What if's take too much time and too much energy.
I'd rather spend it on actual issues.
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By TimB4 on 09/21/2015 4:08 PM
Posted By RichardP13 on 09/21/2015 3:59 PM

Take the first case from California. After the case has be ruled on by the courts, Mr. Booska gets mail addressed to Mr. Patel and goes to Mr Patel's house to deliver. While walking to front door, trips on sidewalk raised by his own tree and breaks his arm. What cause of action might Mr. Booska have?


What if's take too much time and too much energy.
I'd rather spend it on actual issues.

Well, actually, since the OP stated this issue was with sidewalks and root problems, I thought the scenario might be appropriate.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By TimB4 on 09/21/2015 3:46 PM
Tree Law: MCLE Self-Study Article from California Lawyer Magazine, March 2002 reprinted on an attorney's website


This is excellent. It covers a lot of situations.
SheliaH (Indiana)
Posts: 6,964
Posted:
Quote:
Posted By CharlesM15 on 09/21/2015 1:19 PM
There can be all types of conversation regarding this but I don't think that has anything to do with it. I am only interested in the legal aspect.
I found the following.

California
CIVIL CODE 
SECTION 829-834 

833. Trees whose trunks stand wholly upon the land of one owner
belong exclusively to him, although their roots grow into the land of
another.

That says to me that the association owns the trees so it is solely responsible for them and the harm they cause.


While I understand your question about the legalities of this (by the way, legal questions are best left to attorneys to answer), you still haven't said if you brought up your concerns with the board. Usually, this saves a lot of time and you can start a dialogue that hopefully will prompt them to consult the Association attorney (which they should have done before coming up with this proposal.) A chat with the association's master insurance carrier would have also been helpful, as it would have to process any claims - suggest they do that too.

As I said earlier, I understand why they want to reduce the Association's risk for expensive repairs and lawsuits, but simply turning over the responsibility to the homeowners can't be done in a meeting by passing a rule. They need to check the documents to see how this portion of the CCRs can be changed and do it right. If homeowners balk at "their tree" being removed, maybe the attorney can work with the board in coming up with some sort of agreement the homeowner would sign that states they accept responsibility and liability to whatever chaos the tree might create.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By CharlesM15 on 09/21/2015 1:19 PM
There can be all types of conversation regarding this but I don't think that has anything to do with it. I am only interested in the legal aspect.
I found the following.

California
CIVIL CODE 
SECTION 829-834 

833. Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.

That says to me that the association owns the trees so it is solely responsible for them and the harm they cause.


Charles, I see nothing in that statute that addresses who would be liable for tree root damage to your sidewalk. Do not read words into a statute that are not there.

Tim posted links to several resources and the best one is at http://www.treelaw.com/articles/clm.3.02.html
Read it. All of it and not just the part you think covers your situation or justifies your viewpoint.

My best guess is that after you have consulted with an attorney you will find that the most pragmatic course of action is the just repair the sidewalk if the need ever arises.

GlenL (Ohio)
Posts: 5,491
Posted:
Charles, bottom line if a common area tree damages your sidewalk, you are going to pay for the repair or replacement of the sidewalk. 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. Maintenance free living does not mean free maintenance.

Typically these type of schemes are brought up by Boards that are trying to curb costs without raising assessments, so you may have bigger problems than you think. IMHO these are association expenses and the only way the Board could enforce it would be by amending the covenants to make it a HO expense. You and your fellow homeowners should descend en mass at the next Board meeting and during the time allotted for comments, make your views known that it ain't going to fly.
Studies show that 5 out of 4 people have problems with fractions
BobD4 (up north)
Posts: 1,002
Posted:
Quote:
Posted By CharlesM15 on 09/21/2015 9:12 AM
Our board has recently proposed a rules change that requires individual homeowners to be responsible if a common area tree's roots uplift the common area sidewalk in front of your home as well as patio or any other damage.
It is my feeling this is illegal but I cannot find a statute to support me.
It just makes common sense that an individual homeowner who has NO control over common area trees would not be responsible for the damage they do.
If anyone has input it would be greatly appreciated.

CharlesM15 :

At the risk of addressing any California issue, respectfully someone with your concern needs to start by checking state governance law again to see if a Declaration can validly download the replacement - as opposed to mere maintenance & care - of ANY common element component ( or asset or service obligation ) after the initial registration.

Only then could a possibly otherwise voodoo Declaration validly purport to even later carry out such transfer ( & even then only by whatever that statute deems is valid Declaration amendment ).

Legislatures & communities should think carefully about such transfer, even for example for tree(s) planted without authority on the "home" side of a sidewalk or within what is actually or merely by 'usage' an exclusive use common element.

For any mosaic of 'frontage by frontage' obligations attempted downloaded onto each property owner - eg for snow & ice control, road repair (including on private roads) etc - usually results in some lack of consistency. Refusals or slow response may be dangerous. Bucks saved upfront by such downloading, may be more than offset later by costs/delays of chasing individual refuseniks.

The examples & material above from TimT4 & others, also show the same evolution as my own into evolving a public policy that makes it tougher to get away with destroying one's own tree if it has any 'faint hope' of surviving by pricey arboral treatments.

Trees add a lot to a community ambiance. Downloading even mere direct costs/involvement of common element trees directly onto nearest owners' choices, may cost influence over a big part of that. Maybe that should also be raised to your Board for some consideration.
CharlesM15 (California)
Posts: 25
Posted:
This is a letter I propose sending to all homeowners in the association.
I value your input.

PINEWOOD LAKE HOMEOWNERS

I strongly urge you to either write a letter or email Kriss Stevens, at Apex our management company (XXXXX@XXXXXX) that you DO NOT want the proposed tree root policy change to be implemented.

The change makes you personally responsible for damages to the common area sidewalk in front of your home that result from roots of HOA maintained trees.

In my opinion that is not only a violation of the Home Owners Associations basic tenant which is the betterment and protection of the group, but also leaves YOU PERSONALLY LIABLE FOR DAMAGES IN CASE OF A LAWSUIT. If someone trips on the COMMON area sidewalk that a HOA maintained tree uplifts in front of your home you would personally be responsible.

Individual homeowners have NO control over the common area trees and how they are maintained so why would you want to be liable for the damages they incur.

It is just common sense.
SheliaH (Indiana)
Posts: 6,964
Posted:
Quote:
Posted By CharlesM15 on 09/23/2015 8:56 AM
This is a letter I propose sending to all homeowners in the association.
I value your input.

PINEWOOD LAKE HOMEOWNERS

I strongly urge you to either write a letter or email Kriss Stevens, at Apex our management company (XXXXX@XXXXXX) that you DO NOT want the proposed tree root policy change to be implemented.

The change makes you personally responsible for damages to the common area sidewalk in front of your home that result from roots of HOA maintained trees.

In my opinion that is not only a violation of the Home Owners Associations basic tenant which is the betterment and protection of the group, but also leaves YOU PERSONALLY LIABLE FOR DAMAGES IN CASE OF A LAWSUIT. If someone trips on the COMMON area sidewalk that a HOA maintained tree uplifts in front of your home you would personally be responsible.

Individual homeowners have NO control over the common area trees and how they are maintained so why would you want to be liable for the damages they incur.

It is just common sense.

Your board is making the proposal, so any letters, emails, etc., should be directed to them, not the management company (it follows the Board's instructions, not the other way around).

I think this issue merits a special homeowner's meeting where the Board can explain why this proposal is being considered and homeowners can weigh in on their concerns BEFORE a decision is made. Why not check your documents to see how it addresses special homeowner meetings? Usually, a certain number or percentage of homeowners would have to sign some sort of petition asking the Board to hold a special meeting and then the Board has to respond within a certain amount of time. THAT could be the subject of your letter, something along the lines of:

Dear Pinewood Neighbors

As you know, the Pinewood Board of Directors is considering a rule that would make individual homeowners responsible for damages caused by the trees planted in our yards, such as trip hazards caused by raised tree roots. I am concerned this proposal will create a significant financial burden to use and, more importantly, the rule appears to contradicts our CCRs. Section (citation) state trees are part of the common area, therefore maintenance responsibilities, including liability for damages they may cause would be the responsibility of the Association.

Section) states the Board cannot enact rules that contradict the CCRs, so if it wants to turn over maintenance and liability for the trees to homeowners, that requires amending the CCRs. (Section) states CCR amendments must be approved by (percentage/number) of homeowners.

I believe this issue requires further discussion between the Board and homeowners before this proposal is accepted. The next Board of Directors meeting will be held on (date, time, location) and I plan to attend and ask that the Board call a special homeowner's meeting to discuss the proposal's pros and cons. I would appreciate your attending the meeting to support this idea, but you can't, I urge you to contact the Board by sending a letter or email to (address/email - hopefully your board has an email address).
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
CharlesM15 (California)
Posts: 25
Posted:
Thank you for your input Sheila,
When the board sent out the proposal letter they asked that we submit comments through the management company specifically Kriss.
I tried to keep the letter short and succinct knowing that most people won't read a lengthy email.
I like many of your points and maybe will try to condense them.
Again thank you for your input and if you have other suggestions they would be appreciated.
CharlesM15 (California)
Posts: 25
Posted:
Sorry for the misspelling of your name.
SheliaH (Indiana)
Posts: 6,964
Posted:
No problem (everyone misspells it!) Good luck with calling a special homeowner's meeting!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Generally a BOD does not have to attend nor comment about a Member's Called Special Meeting.
CharlesM15 (California)
Posts: 25
Posted:
You are correct. Our residents held a special meeting last year in which none of the board members attended.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
I have seen a BOD Member attend an Owner's Special Meeting but it was as an owner and not a BOD Member. 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.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Charles,

Please read the forums posting rules (available to all simply by clicking on the smiley face that says posting rules).

(3) No Mention of Community/Company/Person Names: In order to fairly enforce (2) and prevent liability, we do not allow the mentioning of any community name, company name or product. Please also do not post the full name of any person.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Charles,

Are the responsibility of sidewalks mentioned in the CC&Rs?
If they are, you will likely have a better chance of pushing that this needs to be an amendment to the CC&Rs (which is very difficult to occur) vs. a simply policy resolution.
BobD4 (up north)
Posts: 1,002
Posted:
Charles M15(Cal)

1- TimB4 & others have recommended that you look closely again for specific duties within the CCRs/Declaration ( & others direct to state law too ) to find whether existing provisions as worded do not support whatever proposed download.

2- Respectfully the dialogue with other owners needs to address whether the proposed download is actually to each unit-dedicated sidewalk leading directly to each unit ( rather than merely what you cite as "common area sidewalk in front of your home as well as patio or any other damage". ) Those unit dedicated walkways may be more vulnerable to buckshee unauthorized plantings or owner's other indirect damage.

Conversely downloading (unit by unit) some stretch of non-dedicated sidewalk servicing the general universe, looks as tough to defend as downloading eg the street's pavement or curb even if eventually it is owners alone who have to pay at day's end.

3 - Douglas K1 (Fla) above dug up something you should read even though municipal (Cal) downloading. Sacramento's Deputy City Attorney reviews in part 2 his city's downloading justified only by cost & the way some courts have addressed the authority to do so. The Deputy attorney almost sounds human.

Good digging by Douglas K1(Fla) : Sidewalk Repair & Liability (2014):http://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Library/2014/Spring-Conf/5-2014-Spring-Gerald-Hicks-But-Its-Your-Sidewalk_S.aspx

CharlesM15 (California)
Posts: 25
Posted:
Quote:
Posted By SheliaH on 09/23/2015 9:26 AM
Posted By CharlesM15 on 09/23/2015 8:56 AM
This is a letter I propose sending to all homeowners in the association.
I value your input.

PINEWOOD LAKE HOMEOWNERS

I strongly urge you to either write a letter or email K, at A our management company (XXXXX@XXXXXX) that you DO NOT want the proposed tree root policy change to be implemented.

The change makes you personally responsible for damages to the common area sidewalk in front of your home that result from roots of HOA maintained trees.

In my opinion that is not only a violation of the Home Owners Associations basic tenant which is the betterment and protection of the group, but also leaves YOU PERSONALLY LIABLE FOR DAMAGES IN CASE OF A LAWSUIT. If someone trips on the COMMON area sidewalk that a HOA maintained tree uplifts in front of your home you would personally be responsible.

Individual homeowners have NO control over the common area trees and how they are maintained so why would you want to be liable for the damages they incur.

It is just common sense.


Your board is making the proposal, so any letters, emails, etc., should be directed to them, not the management company (it follows the Board's instructions, not the other way around).

I think this issue merits a special homeowner's meeting where the Board can explain why this proposal is being considered and homeowners can weigh in on their concerns BEFORE a decision is made. Why not check your documents to see how it addresses special homeowner meetings? Usually, a certain number or percentage of homeowners would have to sign some sort of petition asking the Board to hold a special meeting and then the Board has to respond within a certain amount of time. THAT could be the subject of your letter, something along the lines of:

Dear Pinewood Neighbors

As you know, the Pinewood Board of Directors is considering a rule that would make individual homeowners responsible for damages caused by the trees planted in our yards, such as trip hazards caused by raised tree roots. I am concerned this proposal will create a significant financial burden to use and, more importantly, the rule appears to contradicts our CCRs. Section (citation) state trees are part of the common area, therefore maintenance responsibilities, including liability for damages they may cause would be the responsibility of the Association.

Section) states the Board cannot enact rules that contradict the CCRs, so if it wants to turn over maintenance and liability for the trees to homeowners, that requires amending the CCRs. (Section) states CCR amendments must be approved by (percentage/number) of homeowners.

I believe this issue requires further discussion between the Board and homeowners before this proposal is accepted. The next Board of Directors meeting will be held on (date, time, location) and I plan to attend and ask that the Board call a special homeowner's meeting to discuss the proposal's pros and cons. I would appreciate your attending the meeting to support this idea, but you can't, I urge you to contact the Board by sending a letter or email to (address/email - hopefully your board has an email address).

JohnC46 (South Carolina)
Posts: 14,265
Posted:
The proposed letter does not address the original issues raised by Charles about the unit owner being responsible for any damage done by the tree roots and this is the main issue, not some potential tripping issue.

Tell people they are going to have to pay for any damage and that will peak their interest. Hit them where it hurts.

NpS (Pennsylvania)
Posts: 4,216
Posted:
Suggestion re what to send HOs:

XXX HOA PETITION

We are collecting signatures on a petition to the XXX Board of Directors. We think that the Association should continue to be responsible for common area trees. We do not want them to make us individually responsible for the damage that these trees do to sidewalks and curbs.

If you agree, please sign below. Thank you.

Sikubali jukumu. Read all posts at your own risk.
CharlesM15 (California)
Posts: 25
Posted:
This is what I found in our CC&Rs.

“That the Association shall have the obligation to manage, service, maintain and replace all of the common area and facilities located thereon including but not limited to, all buildings, driveways, walkways, meandering sidewalks (whether located within common area lot 95 or the public right-of-way) and maintenance shall be of high quality so as to keep the property in an always first-class condition and in good state of repair.”

Does everybody agree that covers it?
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By CharlesM15 on 09/24/2015 9:54 AM
This is what I found in our CC&Rs.

“That the Association shall have the obligation to manage, service, maintain and replace all of the common area and facilities located thereon including but not limited to, all buildings, driveways, walkways, meandering sidewalks (whether located within common area lot 95 or the public right-of-way) and maintenance shall be of high quality so as to keep the property in an always first-class condition and in good state of repair.”

Does everybody agree that covers it?

Works for me.

I believe any rule change would require the amending of the CCRs.
CharlesM15 (California)
Posts: 25
Posted:
Thank you Tim.
I changed the post.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Charles,

With that language in your CC&Rs, at the meeting or the feedback you give to the Board is now very simple:

Per the language within the CC&Rs, if the Board desires to create such a policy about sidewalk responsibility and tree roots, the change must be an amendment to the CC&Rs. Any resolution or amendment to any other document transferring responsibility of the walkways to the individual member would be in conflict with the language of the CC&Rs and, being in conflict, would be deemed unenforceable by a court of law. I urge the Board to seek a legal opinion prior to proceeding with any such change.
CharlesM15 (California)
Posts: 25
Posted:
Thanks again Tim.

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