By: Laurie F. Masotto, Esq. (originally published in Fall 1999)
The issues that arise pertaining to a tree are often as numerous as its branches. Trees also tend to evoke strong emotions and feelings that transcend logic and reason. While trees may enhance the value of and add to the beauty of a community, they can also cause significant and costly problems for an association and its board of directors. Some common scenarios and suggestions for handling same are set forth below:
I. Architectural Matters And Views Pursuant to the architectural control provisions contained in many CC&Rs, trees are considered exterior improvements that require architectural approval of the Board of Directors or a designated Architectural Committee prior to planting or removal. When owners submit an architectural request to plant certain trees on their property or area which they are exclusively responsible to maintain, the Association should require the owner to specify the type and size of tree, so that the Board or Committee can determine (1) whether the type and mature height of the tree violates any express view restriction in the Association’s governing documents (remember, there is no right to a view in California unless expressly contained in the governing documents, as set forth in Posey v. Leavitt (1991) 280 Cal. Rptr. 568), and (2) whether the tree’s roots or branches will encroach upon or damage adjacent Common Area or individual owner’s lots.
Where a view restriction exists, it is prudent for an association to consult its legal counsel as to the proper interpretation and scope of the intended view, such as the entitlement to a “reasonable” view. The association should also involve a professional, such as an arborist or landscape architect, to assist the Board in applying the view restriction to the particular tree(s) at issue, and to determine the most appropriate method of enforcing such restriction, such as trimming, replacement or removal. Reliance on these professionals serves to protect individual director against liability in connection with their decisions, under Corporations Code Section 7231.
In addition, the arborist can also evaluate any impact on roots or branches in relation to the proposed location of the tree, and if necessary, suggest alternative trees or shrubs for a given location, for instance, if a tree is being proposed near a wall or driveway maintained by the Association, and is known to have intrusive, fast-growing roots.
It should be noted that even if a tree was approved years ago by the association, the tree may nevertheless become in violation of the CC&Rs where it subsequently grows to a height or in a manner prohibited by the CC&Rs, or where it causes damage, upon which the same evaluations mentioned above should be made.
II. Threatened or Actual Damage
The uplifting of a sidewalk or driveway, the growth into the eaves of a roof, roots intruding underneath the slab or foundation, and trees falling in a storm are all possible dangers that threaten to damage property, and involve substantial expense to the association, not only in removing the offending tree, but in repairing the damage.
Where the tree is located on the Common Area and is causing or threatens to cause damage or injury, the Association, as the entity which maintains and manages the property, has the legal duty to act as a reasonable person would to maintain its property, and to take steps to reduce the risk of foreseeable harm. See, i.e., Moeller v. Fleming (1982) 136 Cal. App. 3d 241, 186 Cal. Rptr. 24. Once the appropriate course of action is determined using its consultants, it is wise to notify the membership or affected members as to what work will be performed, shortly before the work starts, in order to avoid political fallout and a barrage of telephone calls to management wondering why the association is engaging in an “environmental massacre”. Of course, this does not prevent an overzealous owner from attempting to physically stop the work, for example by standing in front of or chaining himself or herself, or their car, to the tree (believe it or not, it has happened.) If this occurs, the association and its contractors should be instructed not to engage in any physical confrontation, and should seek a restraining order through the courts if necessary to continue with the work.
Where a problem tree is located on an individual owner’s lot or private yard, the association should employ its normal enforcement process to obtain compliance. To lessen the impact of removal, the association, together with its consultant, should notify the owner as to the reasons for the request (i..e damage to adjacent property, potential personal injury, etc.) and may suggest possible replacement trees or shrubs for the affected area.
If damage to property occurs, insurance coverage may exist under the Association’s and/or owner’s policies.
III. Self Help
What legal remedies does an association or owner have if tree roots or branches are encroaching onto or damaging property? A property owner may prune encroaching roots and branches to the property line, after notice to the adjoining owner, however, an owner must act reasonably so as to not damage or negatively affect the health of the tree in question. See Booska v. Patel (1994) 24 Cal. App. 4th 1786, 30 Cal. Rptr. 2d 241. Typically, the CC&Rs will require the Association to give the owner the opportunity to correct the violation, and if the owner fails to perform the work after being requested to do so, the Association, after providing notice and a hearing to the owner, may enter onto the property and perform the work and assess the cost against him or her.
If a tree is damaged or unlawfully removed, be aware that Civil Code Section 3346 allows an injured party to be paid treble damages (three times the amount of actual damages) for intentional/wrongful injury to trees, and double damages where the act was involuntary or believed to be the land of one’s own. Thus, if it becomes necessary for the Association to undertake any work to trees which are not the Association’s responsibility to maintain, the Association should again seek the recommendation of an arborist or similar professional, and have such person oversee the work, to reduce potential exposure to liability.