June 2012 – An HOAleader.com reader writes, “One of our owners planted a tree several years ago, and it just recently caused damage to a sidewalk in our common area. Our CC&Rs define the sidewalk as part of the major components and therefore the HOA’s responsibility to repair. But I’m wondering if the fact that the owner planted the tree that caused the damage means the owner’s responsible for the repair cost?”
Here, our experts offer opinions on whether this is an obvious problem for the owner to cover.
Can HOA Go After the Owner?
On our reader’s first question, whether the HOA can demand the home owner cover the damages, our experts say it’s possible. But first we need to know more facts surrounding the offending tree.
"It’s never as obvious as it seems because we don’t know all the circumstances." says Gordon Goetz, president and CEO of Goetz Manderley, a community association management company based in Santa Maria, Calif., that manages 210 associations totaling 17,000 homes in California’s San Louis Obispo, Santa Barbara, and Kern counties. "For instance, was this tree planted on the owner’s lot, or did the owner go into a common area to plant it? Also, if the owner planted the tree in a common area, did he receive board approval? If so, repairs quite possibly become an HOA expense."
Then you should turn to your governing documents and state and local law. “You need to know if your covenants address this in some way,” says Jeff Vinzani, an attorney in Charleston, S.C., who represents associations. “If they don’t, look to your state’s common law. All states are different, but in some, the common law says you have to fix it if you’ve done something to damage your neighbor’s property. I’d think that common law would apply to this situation.”
HOAs in North Carolina would also likely be able to pursue the homeowner. “I think the HOA could still pursue a claim against the homeowner as long as the statute of limitations from the time he planted the tree hasn’t passed,” explains Michael S. Hunter, an attorney and partner at Horack Talley in Charlotte, N.C. “That begins when the homeowner violates the HOA’s restrictive covenants. And in North Carolina, the time period to file a lawsuit is six years.”
Home Owner May Have a Defense
However, it’s not a given that your efforts to get the homeowner to pony up would be successful. “There’s a concept in the law called laches, which means that because you sat on your rights for so long, I’ve now been prejudiced.” explains Hunter. “The board let the issue go on so long, the homeowner never had any reason to think his planting of the tree was a problem. His argument will be, ‘Had the board told me about this three years ago, I’d have taken the tree out before it became a problem. Now that they’ve sat on their rights, I’ve been prejudiced.'”
Goetz agrees the HOA’s sitting on its hands for years may be troublesome. “If the owner planted it on his own, trees still grow slowly,” he says. “Did the board at any time demand the tree be removed?”
Because there are so many variables, Duane McPherson, Carrollton, Texas–based division president at RealManage, an association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas, says he’s never had a client pursue a home owner in a situation like this. “To my knowledge, we’ve never dealt with a situation where we’ve gone back on the home owner and made him pay for replacing the sidewalk. The city of Los Angeles has been trying to pass an ordinance saying that if it’s the roots from your tree that are damaging the sidewalk, and if someone trips and falls, it’s going to be on you, the home owner. A lot of HOAs have obviously not been in favor of that because then the trees that belong to the association could be subject to the same rule.
“I don’t know if anybody has figured this issue out,” adds McPherson. “We haven’t. It’s a tough thing to do, and the best thing is to work it out with the home owner. Explain that the worst case is that there will be a trip and fall, and the injured party is going to come after both the HOA and the home owner. So it’s in everybody’s interest to solve this dilemma as quickly as possible.”
Matt Humphrey is president of the Alameda, California-based HOAleader.com, from which this article was adapted.