6 minute read
Tree Roots! Association Liability and Maintenance Guide
By Dyanne L. Peters, Esq.
Sneaky and silent they slowly grow over time. Then, without warning, they strike! A pipe bursts and causes water damage to a residence. The culprit? Tree roots. How can an association combat this secret invasion? This article will provide some case law and guidance in dealing with tree roots and resultant damage.
Strict Liability or Negligence Standard?
There are a few older cases that address tree roots and branches and owner liability. The cases Grandona v. Lovdal (1886) 78 Cal. 611, Crance v. Hems (1936) 17 Cal. App. 2d 540, and Bonde v. Bishop (1952) 112 Cal. App. 2d 1 held that encroaching tree branches or roots are considered a nuisance. These cases further reasoned that if a neighbor sustains damage as a result of the encroaching roots, the neighbor can recover damages sustained from those roots.
Finally, the cases held that the tree owner is liable for any actual damage caused by encroaching branches or roots, regardless of knowledge of the nuisance.
However, the case Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal. App. 3d 92 clarifies in a footnote that Grandona, Crance, and Bonde “appear to impose nuisance liability in the absence of wrongful conduct.” Under this interpretation, it could be argued that tree owners would be subject to liability based on a negligence standard. This means that an owner has the duty to maintain trees so that they do not interfere with another’s free use and enjoyment of his property.
Furthermore, in Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal. App. 4th 1320, the court held that owners have a duty to act reasonably to protect adjoining owners from dangerous conditions and from the probability of injury.
Some of the older cases above (i.e., Grandona, Crance, and Bonde) hold that the owner of the tree may be held strictly liable for any actual damages caused by the encroaching roots. This means that the owner of the tree is responsible for all damages incurred by the encroaching roots, even if the owner of the tree did not have knowledge of the encroachment and ensured proper maintenance of the trees.
Conversely, the cases Lussier and Alpert suggest that tree owners are held to a nuisance liability or negligence standard. This means that if the owner of the tree did not have prior knowledge of the encroaching roots and can demonstrate that they were properly maintaining the trees, a court may find that such a tree owner was not negligent and therefore not liable.
While it seems that the law is not entirely settled on how to determine liability for encroaching roots, based on the footnote clarification in Lussier and the modern case law, most attorneys in the industry treat liability under a negligence standard.
This means a tree owner may be liable for a nuisance caused by encroaching tree roots only if the owner knows or should know of the condition and the owner failed to take reasonable steps to properly maintain the trees.
The tree owner may be liable for a nuisance caused by encroaching tree roots.
Liability Protection
Under the negligence standard, liability can attach for failure to act. This means that an association concerned with tree root invasions from common area trees into owner property needs to take steps to ensure performance of reasonable maintenance and to address tree root issues as they arise.
When making decisions related to common area maintenance, including tree maintenance, a board of directors is offered liability protection for their decisions under the legal doctrine known as the “Rule of Judicial Deference.” Where a board made a maintenance decision in good faith, in the best interests of the association, upon a reasonable investigation, and within the scope of its authority under controlling law, a court will defer to the board and generally uphold the decision. See Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal. 4th 249 at 253.
However, it is important to note that the court in Affan v. Portofino Cove HOA (2010) 189 Cal. App. 4th 930, found that while broad deference is granted to boards to determine how to maintain common areas, an association may still be held liable for its failure to investigate maintenance problems and to take reasonable action. The board still has a duty to investigate and take some action in response to a maintenance issue. For example, if the association has been informed of tree roots invading pipes and causing leaks to units, in order to reduce potential liability the board should take steps to ensure the issue does not recur.
Standard of Care
The first step an association should take is to review their governing documents. The standard of maintenance may be controlled by the language within the association’s CC&Rs. For example, some CC&Rs have provisions that require pipes to be inspected and/or cleared at least once per year to help prevent root blockages. An association who fails to perform basic maintenance pursuant to the governing documents may be considered negligent or even in breach of contract.
Next, an association should develop a plan for implementing preventative maintenance measures and for immediately addressing any issues that are reported by owners or vendors. The association should perform an investigation prior to implementing these measures. Part of this investigation should include coordination with the association’s vendors, such as the landscaping and plumbing professionals. These professionals can assist the association with the development of a plan that can implement preventative maintenance and regular inspections by association vendors, for example, regular pipe inspections and tree trimming and inspection. The association should keep records of any expert reports/inspections and all the steps taken to implement reasonable care in the inspection and maintenance of tree roots and branches. An association should also document and keep records of any owner complaints related to tree encroachment issues.
Finally, an association should consider adopting policies to address these issues. For example, the association may consider adopting a tree maintenance policy or water intrusion policy. Such policies put the onus on owners to report any issues to the association immediately and may offer steps an owner can take to help mitigate damages.
If an association follows and implements these steps, it may offer a defense in the event an owner files a lawsuit against the association for damage related to tree root invasion.
