Reader Questions - Trees

Kelly,

I have been complaining about a tree that is behind my property on common area. The problem is the leaves that constantly fall into my pool and yard. The leaves are not degradable, can easily plug up the filters, and stain the pool. I attended a meeting, pleaded my case, and was told they would remove the tree and replant another type, and I would pay. I objected. It’s not my tree and not on my property.

What can I do?

G.I., Corona

Dear Kelly,

I was contacted by the HOA in regards to a large tree on my property. The HOA is demanding that I trim the branches hanging over the property line. It is my understanding that if a limb overhangs the property line it is then that property owner’s responsibility to maintain. The HOA is requiring me to pay the cost of trimming.

Your thoughts please,

P.F., Highland

Dear G.I. and P.F.,

Trees are a wonderful amenity, but the responsibility for trees is often misunderstood. Ownership of a tree is established by the location of its trunk. Under Civil Code Section 833, enacted in 1872, the owner of the tree is determined by the property upon which its trunk rests. So, if the tree trunk is within common area, it is association responsibility, and if the trunk rests within the separate interest of the lot owner, the tree is owned by the member.

In similarly ancient legal precedent, California courts have ruled since 1886 that the tree’s owner is responsible for the damage caused by the tree, even damage off the tree owner’s property. Whether tree roots or falling branches, the owner of the tree is most likely to be held responsible for damage caused by the tree. This legal responsibility does not depend upon negligence.

If tree roots or branches intrude across a property line, the neighboring owner may cut the roots or branches, so long as the tree is not harmed. This means a consultation with an arborist is essential before getting out the chainsaw.

Thanks,
Kelly

Dear Mr. Richardson,

Some years ago, several trees had died and we asked the Board for permission to replant trees from the approved list. We received approval in writing, and re-planted.

The board now has members who are tree haters. They have called us in for hearings, and we have shown them our approvals.

The association sent a final letter asking for trees/bushes to be kept at 10 feet, which is not part of the architectural guidelines, and CC&Rs, and it says we are non-compliance without specificity.

Please let me know,

P.B., San Clemente

Dear P.B.,

California law does not provide for view protection, unless there is a specific city ordinance or governing document providing for it. Some associations have limits on tree height, to protect community views. However, rules, including architectural or landscaping standards, must be written, under Civil Code 4350(a). If the association desires a height limit, it should pass a rule using the 30 day notice process required by Civil Code Section 4360, or better still, ask members to approve a CC&R amendment. Some associations have unwritten “house rules,” but those are traditions, not enforceable rules. Lastly, disciplinary hearing notices should specify what rule or CC&R section is being violated.

Regards,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.