Tree maintenance

Hello all,,
I am a newly elected board member in a single family home community that I have lived in for a year and a half. We have a problem with trees planted by the developer. They planted street shade trees in front yards close to homes and now the trees are growing too large for a confined space. Our By-Laws clearly state that the HOA is responsible for the maintenance of trees not included in a homeowner's adjacent landscaping. Our problem is defining "maintenance " . The older board members take it to mean trimming and mulching but nothing more. Several homeowners have complained about tree roots getting under their driveways and threatening their foundations. The trees in question have not been altered in any way by the homeowners.

My question is do other HOAs include root damage under the maintenance umbrella? This is a hot button right now and could possibly court actions if not addressed this coming Spring.

From all my reading of contemporary case law, these days tree root damage to others' property is covered under nuisance law. The tree owner is generally responsible for any damage the tree's roots cause, with a caveat or two about "notice" in many states.

The controlling appeals court case in New Jersey is D'Andrea v. Guglietta (1986) will often be. It is cited not only in NJ but also in other states. See http://law.justia.com/cases/new-jersey/appellate-division-published/1986/208-n-j-super-31-0.html . The case is significant to me because it says the owners of a tree with nuisance tree roots need not have notice that the roots are damaging another's property in order to be held liable for the damage. From the appeals court's decision: "...[T]he trial court on the appeal before us properly held that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance, irrespective of the absence of proof of prior notice of the nuisance to plaintiffs."

My HOA is dealing with a claim against it for damage to several member's sewer lines. It's been a over two years of back and forth, with both sides lawyered up and having paid high attorneys' fees to date. From my reading and study of these situations, the attorney's fees become so high that they exceed the cost of tree removal and repairs of damage caused by the roots. It's best to handle these things amicably and quickly from the start. It appears to me that your HOA should remove these large trees and replace them with vegetation with less aggressive roots.

Thanks for the replies everyone. My problem here is that the board is divided on the issue of who "owns" the tree. Our By-laws say the Association is responsible for maintains no the tree with no further detail. I take that the word maintain also includes removing it if it dies or is causing other problems and the damage that the tree might cause. I hate to see this go to court to decide what the responsibility of maintenance includes, but it's quickly headed in that direction.

Our governing documents address ""maintenance of", but not "ownership of" the trees. They clearly state that the Association is responsible for the maintenance of trees left in same condition as when they were planted, even if they are on an owners lot. By original condition they mean not included in a homeowner's adjacent landscaping by extending landscape beds adjacent to their house around that tree. Our problem is defining "maintenance". Does it include more than just trimming and mulching in the spring, and also mean removing if it is dead even paying for damage caused by falling branches or spreading roots?