Trees are beautiful, but they can cause headaches for homeowners association residents and board members. Disputes related to view obstruction, mess, and property damage can all spark legal problems. Learn what California law has to say about trees in HOAs.
William Blake once wrote, “Everybody does not see alike . . . the tree which brings some to tears of joy is in the eyes of others only a green thing that stands in the way.” He couldn’t have been more right. Trees are constantly debated in communities: some people can’t get enough of their beauty, environment, color, and shade; others can’t stand their dropped leaves, lumpy roots, and view-blocking canopies.
With an entire community’s worth of opinions up in the air, it’s hard to determine who’s right and who’s wrong. Which trees should stay and which have to go? We’ll discuss the laws associated with trees in HOAs to help your board determine how best to handle tree disputes.
What Does the Law Have to Say About Trees?
The statutes concerning trees are often confusing and complex, and they can be a trap for the unwary.
First, the board must ask itself: Who owns what? Civil Code Section 833 states that trees whose trunks stand wholly upon the land of one owner belong exclusively to him, even if their roots grow into the land of another. Civil Code Section 834 says that trees whose trunks stand partly on the land of two or more owners belong to them in common.
Second, watch out for damages for injury to trees—there are two statutes that can either double or triple damages for injuries to trees or timber on the land of another. If you are found liable for a wrongful act that involves cutting down, removing, girdling or doing anything that would injure a tree, the damages can be multiplied depending upon which statute you are sued under (Civil Code Section 3346 or Code of Civil Procedure Section 733).
When Is a Tree a Nuisance?
Trees whose branches or roots encroach over or on the land of another may constitute a nuisance. The owner of the land encroached upon may abate the nuisance by cutting off the overhanging branches or destroying the encroaching roots. However, there is a duty to act reasonably, and there is no absolute right to sever tree roots from a neighbor’s tree. In abating the nuisance, without court action, the injured landowner may not cut the tree down or cut its branches or roots beyond the extent to which they encroach upon his/her land. In other words, don’t cut branches or roots on another’s property or you could be liable for damages.
If you are going to abate an encroaching tree or roots, exercise caution. Remember to consider the following:
- Consult with an arborist or similar expert about the tree’s condition, and have the expert provide written requests for help or abatement that explain the need for abatement (e.g., branches plug up my roof drains or your roots are breaking up my brick patio) to the encroaching neighbor.
- Photograph or videotape the encroachment both before and after you take action.
- Measure the area before and after to document the situation.
Remember that even though you may prune or cut a tree in good faith, your action can cause damage for which you could be liable. For example, cutting the tree at the top, usually for an increased view, more light or greater exposure, can structurally harm a tree. Cutting or pruning lower branches and leaving only the growth at the top (known as liontailing) or cutting or pruning inner branches to create growth on the outer tips can also increase the risk of a structurally unsound tree that could topple in wind or rain.
Also be careful when cutting roots. While it may solve your problem, cutting the roots can also weaken a tree and cause it to fall. While you have solved one problem, you have created another. The tree owner may pursue you for the damage he has incurred.
What Should You Do If You Suspect a Tree is Dangerous or Diseased?
Consult a tree expert, who will inspect and examine the tree. If it is dangerous or diseased and is on your property, take action to correct the problem. If it is a neighbor’s tree, talk to the neighbor, and then put your concerns in writing before you take the next step. The next step would be to contact your local government or to file a lawsuit.
Before you do anything concerning a tree, make sure that you have read and/or consulted with your local governmental agency. Many cities have “view” ordinances that require you to cut or prune your trees if they obstruct someone else’s view. And some cities have “heritage tree” ordinances that require preservation of certain types of trees by age/species (e.g., redwoods), height, and/or size (e.g., a tree whose trunk has a circumference of 50 inches or more). Violation of these ordinances could lead to criminal and/or civil penalties.
Trees and Solar Panels
If solar panels are blocked by trees or shade, it is possible that the solar panel owner may have a legal action against you. There are two specific statutes in the Civil Code (801 and 801.5) that deal with the easements and solar easements for solar installations. In addition, the Solar Shade Control Act and Public Resources Code 25980 et seq. deal specifically with the controls on shade cast by trees and shrubs on solar collectors. Be aware of these laws.
What Tree Problems Are Common in HOAs?
Removing a tree that a homeowner wants to remain. The association often has responsibility for maintaining the common area. This includes maintaining and preserving landscaping. Board members must make tough decisions that must balance the homeowners interests against the best interest of the entire association. The factors most likely considered are:
- Whose responsibility is it to take care of the tree?
- How long has it been there?
- Is it causing any damage?
- Is it sick or diseased?
- Is it in an area that is overplanted?
- Is it in an area that has sufficient drainage?
- Does it get enough water?
- What are the overall landscaping plans?
- Are there budget constraints?
Removing a tree because it is a liability. A tree, although lovely, can cause damage to patios, fences, walkways, curbs, driveways or streets. Falling limbs or a falling tree can injure people and property. (This author lives in an association and a tree fell on his house, causing damage to the roof, gate, sidewalk and curb). Removal may be the only solution. Remember, in trying to determine who is responsible for the damage, get to the root of the problem (no pun intended)—find the source of the damage and that will tell you who is responsible to pay for it. Example: if a tree is on common area property and its roots grow into the patio of a homeowner causing damage, the responsibility lies with the association.
View/privacy issues. Usually this comes up when a tree is removed. We all like to look at trees, but sometimes they block views and must be removed. Privacy issues come up when trees serve as noise or privacy barriers. This must be balanced against the needs of the association. For example, if someone lives in a condo and a neighbor plants a tree on his first floor balcony that grows to block the view of the person on the third floor, guess what is going to happen? The tree will be removed.
Self-Help. A homeowner plants or maintains landscaping in the common area without the written permission of the board (this is usually a requirement in the CC&Rs). The board must then require the homeowner to comply with its governing documents. The association must be consistent in uniformly enforcing the governing documents. Watch out for enforcement defenses – the HOA could be in trouble if a homeowner can say: “Why are you picking on me? What about Mr. X, you let him plant his own tree!”
Overplanting. The association must make tree removal decisions based on previous actions taken by others. Examples:
- In the original development, in order to create curb appeal, too many trees were planted, or trees were planted in the wrong places and must be removed.
- A homeowner planted 19 trees in his front yard. The association said this was inconsistent with the community (invites termites; is a security issue, provides hiding spots for criminals) and moves for removal.
Reserve issues. Remember to reserve for short and long-term landscape maintenance and planning.
Trees as structures. A recent case involved a line of trees that blocked the view of the mountains. A lawsuit for a nuisance was brought. The Court concluded that the trees were a spite fence and a nuisance. The trees were ordered removed. The Court equated the trees with a fence. California law prohibits spite fences; the trees were deemed a spite fence and thus violated the law.
Tom Fier is an attorney at law and the past chair of the ECHO Legal Resource Panel.