Who pays for damage done by tree falling on a neighbor's house?

Keith,

Are you in a developement? Are you stand alone homes, townhomes, mobile homes, condos? Much will depend on what type of HOA you are.

What about the guy who's tree branch it is--does he not have insurance? Tell us

Keith,
Well the right thing to do is for the branch owner to turn it over to his insurance company but it looks like that isn't going to happen.

The owner with the damage might just have to pay the deductable and bear the pain. But what he can do in the future is to have any and all branches that are in his property air space, cut off, removed or trimmed. He has the right to do this

Keith,

Irregardless of who owns the tree. If the owner of the tree knew that a limb was dead and did nothing about it, they could be held responsible.

If the owner of the tree did not know that the limb was dead and it fell in a storm, insurance considers it as an act of God/Nature.

If the Association doesn't own the tree, didn't have responsibility of trimming the tree and did not have property damaged by the tree, they should not be involved.

This type of accident is what insurance is for. If the homeowners chose to have a high deductible to keep costs low, they should have plans on how to pay for that deductible. If they didn't have plans, they gambled and lost.

Tim

Sorry Everyone, but don't look to any Florida laws on this. There are no court precedents set on this as well. It is a neighbor against a neighbor. The only way out of this is for the guy with the damage to sue the guy who owns the tree. As I said earlier, the guy with the damage can chop the heck out of any part of this tree which is in his own air space which will prevent further damage.

Prospectus Not The Best Defense

Dan Perry
Published: Saturday, November 20, 2004 at 12:01 a.m.
Last Modified: Saturday, November 20, 2004 at 12:00 a.m.
Q. Our mobile home park owner claims the home owners are responsible for tree removal. He does not agree with your columns. He points to a section of our prospectus that he claims excuses him from any responsibility for tree removal. That section reads: "Management shall not be liable for any loss of or damage or injury to the person or property of any resident, any of the members of the resident's family, or any occupant, guest or invitee on any lot rented by a resident. Management shall not be held liable for fire, water, steam, rain, hail, wind, frost, breaking of pipes, electric currents, odors, insects, or other acts caused by the elements or beyond the control of management."
He also says we agreed to hold him harmless for anything that happens to us or our homes. He points to our prospectus that reads: "Each resident shall indemnify, defend and hold harmless management from and against any loss, damages, costs or expenses arising out of any claim asserted by any person because of any loss of or damage or injury to the person or property of any person caused by an act, omission, default or neglect of any occupant of the lot rented to such resident or of any guest or invitee of any occupant of such lot."
He further claims we agreed to obtain insurance to protect us and him for anything that happens to us or our homes. He quotes the section of our prospectus that authorizes this: "Management may at anytime during the occupancy of a lot by a resident require such resident to provide proof of insurance showing adequate coverage for fire and casualty insurance and public liability insurance."
Finally, the park owner removed one tree trunk from a homeowner's lot and sent the homeowner a bill for the cost of the tree trunk removal plus an additional 20 percent.
Are these sections of the prospectus valid? Can he make us pay to remove tree trunks and then charge us an additional 20 percent? Do we have to get insurance?
A. Each of the sections of your prospectus are likely invalid. A court would probably hold these sections void since they are against public policy. Florida and other courts have generally refused to enforce these kind of exculpatory lease provisions.
Section 723.032 (2) of the Florida Mobile Home Act reads: "Any provision in the rental agreement is void and unenforceable to the extent that it attempts to waive or preclude the rights, remedies, or requirements set forth in this chapter or arising under law."
A 1991 decision of the Second District Court of Appeals construed a nearly identical section of the Florida Residential Landlord and Tenant Act in favor of an apartment dweller who was sexually assaulted at her apartment complex. The apartment dweller argued that the landlord had not provided adequate locks. The landlord pointed to a provision in the lease that purported to hold him harmless for any injury or damages. The appellate court reversed the lower court's judgment for the landlord.
Section 83.47(1) of the Florida Statutes read: "... A provision in a rental agreement is void and unenforceable to the extent that it: (a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part. (b) Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law."
Your park owner cannot charge you a 20 percent markup on his tree removal. This is a clear violation of the Florida Mobile Home Act even if the 20 per cent fee is explicitly mentioned in your prospectus, rules and regulations, or rental agreement. Additionally, he cannot require you to remove his trees which happen to be on your lot.
Nor can your park owner insist that you obtain insurance. While insurance is a good idea yourself and possessions, a park owner cannot legally require you to obtain insurance to protect him or yourself from acts or omissions that are clearly the legal responsibility of the park owner.
Daniel W. Perry is a former county judge. His practice centers around the representation of mobile homeowner associations, residential cooperatives and subdivisions. Questions or comments can be sent to The Ledger, P.O. Box 408, Lakeland, FL 33802 or faxed to . Some questions may be answered in the column. He also can be reached at [email protected].

Keith, with all due respect, that is not really one of the goals of a Homeowners Association. In other words, the main goal is to protect the investment that was made into the home and/or lot. Improving the quality of life might be a nice goal for a community or social group to have, but that's not the purpose of an HOA.

There is nothing wrong with a board taking this on as a sort of social mission, apart from their responsibilities mandated by the governing documents, but it's not necessary in many, or even most, HOAs.

For one thing, HOAs, for the most part, do not have the infrastructure or the resources to "improve" the quality of life of the residents. Most HOAs are doing good just trying to maintain property values and work to keep them from eroding too much.

Improving quality of life is really above an HOA's paygrade.

While it is true that this tree situation is between the homeowners and not a specific BOD responsibility, I do believe the BOD to have some civic responsibility to the members. Also, members of the association looks to the BOD as community leaders and, therefor ask for their BOD advice or information to help them in their situation. Communication is key and works both ways. Writing newsletter articles to cover such topics can be helpful if worded correctly. It can be a great way to improve quality and build community.

Property insurance does not usually cover damage to other properties, only your own. If I was the tree owner though, I would have paid a portion of the deductible to help defray the cost. Why be an ogre about it?