Can a homeowners association be required to cut down a tree? ask the lawyer

Q: We are members of a homeowners association. Our patio, which our dog frequents, has leaves and berries falling from a nearby tree (part of the common area). Our dog got sick several times and we were told by our vet that the leaves and berries of the tree can be toxic to dogs. Should the association be required to remove the tree?

YB, Ventura

Ron Sokol

A: The association is responsible for maintaining the landscape of the common area. If the tree is toxic to your dog, I don’t understand how the association can justify leaving it there. Is your dog the only animal that got sick? Pruning won’t avoid all the droppings, will it? More information on the tree would be helpful.

The circumstances you describe are worrying. California Penal Code Section 596 makes it a misdemeanor to knowingly poison someone’s pet. Either way, it seems that the quiet enjoyment of your home is negatively affected by this tree. If so, it may constitute a nuisance, which may require an injunction and damages.

Consult a qualified attorney to help you, which includes determining if there are any actions you need to take under the association’s rules and if “alternative dispute resolution” is necessary. California homeowners association law (the Davis Stirling Act), for example, may require an ADR with the association before you can sue.

Q: During a windstorm, a large tree adjacent to our house fell, causing so much damage that we had to move. We live in a condominium and the tree was part of the common area. The association is slow to make the repairs and we are forced to live in temporary accommodation, which is not suitable. An arborist told us that the wind may have been a factor in the tree’s fall, but the tree itself was dangerous and shouldn’t have been there. Is the association responsible?

TR, wooded hills

A: Your association has a fundamental duty of care to its owners. This includes the maintenance of the common area. Owner safety is an obvious and fundamental aspect of what the association is meant to protect. Thus, you may well have meritorious claims against the association for personal loss, diminished quality of life, and physical – if not emotional – damage. As above, a decision must be made as to what you are required to do under the rules of the association and whether ADR is required before legal action is taken.

Ron Sokol has been a practicing attorney for over 35 years and has also served on numerous occasions as a judge pro tem, mediator and arbitrator. It is important to keep in mind that this column presents a summary of the law and should not be treated or taken as legal advice, much less a substitute for genuine consultation with a qualified professional.

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