Reader Questions - What About Those Trees?

Dear Sir,

We live in a community with many common areas. There is a common area behind our home with a large slope that has very large trees growing on it. One tree is growing sideways and we are concerned that it might cause damage to my home if it were to fall.

The trees have never been trimmed. I have called, written letters, begged and pleaded about this but to no avail. The trees are getting larger and larger and no one has trimmed those trees. How can I get them to take care of this?

Thank you,

M.K., Calabasas

Dear Kelly,

I just moved into a townhome. There is a large tree between the unit next to mine and my unit. This tree is constantly dropping leaves and seeds. Its roots block my back yard drainage, have created a long crack in my patio, and lifted it about an inch on one corner. No one sees this tree except my neighbor and me, and she has no objection to its removal. I requested the association remove the tree and they denied this request. The board agreed to trim it. I have offered to pay for its removal but the board won’t allow me and refuse to do anything regarding the problems.

Do I have any recourse? If I hired a contractor to come in and cut the tree down, what could the board do to me?

Thanks for any assistance,

R.C., Coto de Caza

Dear M.K. and R.C.,

I am assuming that the trees in both your situations are common area trees. This is an important assumption, but the governing documents should provide the answer as to whether M.K.’s slope and R.C.’s patio are common area. Unless the documents provide otherwise, your HOA board should maintain common areas. Association boards have wide discretion in how to handle maintenance issues, including trees, so long as within the Business Judgment Rule (see columns “Protection For Volunteers: Business Judgement Rule” and “The Business Judgment Rule: Not a Free Pass“). Hopefully, if M.K.’s board is leaving the tree in place, it has obtained the appropriate advice that the tree does not create a hazard.

The owner of the tree is responsible for problems the tree causes. Negligence or moral blame is not the issue – the issue is cause. The prudent board will balance the importance of the tree, the cost of its removal, and the cost of repairing the problems the tree causes. This is not always an easy decision. However, the tree cannot be ignored. Trees can create a nuisance, and can damage property.

Do not take matters into your own hands. Removing trees without authorization could be the basis of a lawsuit for “waste”, which is a very old tort meaning one damaged real estate. If you did that, the HOA might conceivably take you to court. In the HOA world, it is not true that “it is better to ask for forgiveness than permission.”

R.C., if the tree in question is considered valuable, perhaps the board will decide that the cost of repairing or modifying your patio is a reasonable expense rather than eliminating the tree.

Before running to court (expensive and undesirable), consider asking your board for an “Internal Dispute Resolution” session. Your HOA is required to have an IDR policy in place, and should be sending a copy of it to all members annually.

Best,
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®.