Reader Question – That Tree is a Problem!

By Kelly G. Richardson, Esq. CCAL

Dear Kelly: Our condominium association CC&Rs state that plumbing problems that service only a single unit are the responsibility of the unit owner. If the main drain servicing multiple units is blocked it is the responsibility of the association. My question is about damage caused by tree roots. The association has repaired driveways and sidewalks that service only a single unit that were lifted or cracked due to tree roots coming from the common area. The board considered these to be trip hazards. Recently a unit had a toilet drain clog under the slab that was caused by tree roots from a tree in the common area. It was the opinion of the board that the toilet served only one unit, so it was the unit owners responsibility. Were we correct in our assessment? T.E., Santa Barbara

 

Dear T.E.:

It’s hard to wade through all the many sometimes conflicting legal principles in governing HOAs. Here is one example. The common area tree grew due to nobody being negligent, but that does not end the discussion. The tree still has damaged property which otherwise would be an individual owner repair responsibility. That tree could be characterized as a nuisance, making it HOA responsibility. Boards and sometimes lawyers focus upon whether negligence exists but miss the possibility of nuisance. I can’t say definitively you were wrong or right, and that is for the HOA’s legal counsel to determine.

Best, Kelly

Mr. Richardson: Our board put together a committee to look at ways to amend our CC&Rs to safeguard or restore views that have been lost over the many years that this development has existed. The streets are terraced and a few homeowners have planted trees and such to have privacy from houses above. A few of the homes above now have their views blocked.  Any advice before we put something together that may land us in trouble?  Thank you for any advice.  J.S., Carlsbad

 

Dear J.S.:

California real estate law does not automatically protect views. Sometimes a city ordinance protects view rights, and planning commissions often consider view impact as part of reviewing proposed new construction. CC&Rs are often the best bet to protect views for HOAs in which views are a subject of importance. The problem often is that in many associations only certain portions of the project have views while much of the project has no view to protect. If view protection is not in the CC&Rs and there are enough interested owners, the HOA membership could vote to amend the CC&Rs. If the issue is that the view protection already is in the CC&Rs and just has not been followed, then the board may want to huddle with the HOA’s attorney to confirm the view protection rights and talk with the manager to develop strategy as to how to begin enforcing view protection. It would be good form to give the members ample time to get ready, particularly if tree trimming has not been performed in a long time. Giving folks advance notice is almost always a good idea for any decision which will affect their lives or their property. This is particularly true when something is going to be enforced after not having been enforced for a time. As with most HOA matters, communication is golden.

Thanks for your question, Kelly