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Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #17 • April 2009
See the Forest for the Trees
By Lise K. Ström, Esq.
One generation plants the tree, and another gets the shade.
— Chinese proverb
Trees provide numerous benefits to a community, adding beauty, offering a natural cooling system by providing shade, and giving birds and animals a habitat. However, trees are often the cause of problems for homeowners associations, and some of the problems caused by trees are not immediately apparent but only develop over time as the tree grows. As they grow, trees cast larger shadows, expand their root systems, and grow branches, which can lead to interference with views, disturbance of sidewalks and foundations, encroaching branches into a neighbor's yard, or the blocking of adequate sunlight for a solar energy system to work.
Roots and Branches: Trees as a Nuisance
One of the most common problems trees pose is where the branches of a neighbor's tree are intruding into someone else's yard or common area. Another common problem posed by trees is that the roots grow so large that they make sidewalks, driveways, or foundations buckle. Both situations pose potential health and safety hazards, and could injure people or damage property. What is an association to do?
Determine the owner. First, it's important to determine who is responsible for the tree that is causing the problem. An association's CC&Rs and operating rules are the first places to look for guidance. Relevant Civil Code provisions and case law should also be considered and, when taken together with the community's governing documents, responsibility for the errant tree can be determined. In general, where the tree trunk is located determines who is responsible for the tree and if the damage to person or property can be traced back to that tree, the tree owner will ultimately be responsible for the harm it caused.
Governing documents generally provide for the maintenance and upkeep of landscaping, including trees. Architectural rules may address specific restrictions related to trees and plants. Often but not always - responsibility for a tree depends upon whether it is located on common area, exclusive use common area, a homeowner's lot, or city or county property. Associations typically maintain all landscaping situated on common area, including trees. In planned developments, owners are generally responsible for all landscaping on their lots, if the lots extend beyond the perimeter of the building, but some CC&Rs provide that the association is responsible for maintaining landscaping in front yards. The association may maintain landscaping in the area between the curb and the sidewalk, which may include "street trees" (this area is often referred to as the "parking strip"); alternatively, the city, county, or a community services district may be responsible for this area. Condominiums may include small back yards, patios, or balconies that are designated as exclusive use common area in the CC&Rs, and owners may be permitted to landscape these areas. Each community is different and should be evaluated in light of its governing documents, but the general rule is the party responsible for maintenance of a specific area of the project would also be responsible for the trees located there.
However, governing documents often fail to address situations where a tree has overgrown its original boundaries. In such situations, the Civil Code and relevant case law provide additional guidance.
ECHO 2009 South Bay Spring Seminar
Surviving in 2009
How can you weather a dismal economy, "green" your association, and protect your assets at the same time? Find out at ECHO's South Bay seminar. ECHO has assembled a lively, knowledgeable group of attorneys and industry experts to speak about Making Ends Meet, green roofing technology, and Insurance Considerations for Construction.
We have also set aside a full hour for an Ask the Attorneys session to answer your pressing legal questions. Join construction expert Patrick Falconio, roofing expert Brian Seifert, and attorney Steven Weil for another outstanding South Bay program.
Saturday April 25, 2009
Campbell Community Center, Campbell CA
There will be a light continental breakfast and every attendee will receive a Seminar Program Book as a part of the registration fee. There will be sponsor tables and sponsor drawings for great prizes.
CAI Peninsula Education Forum
The Future of Common Interest Developments:
Can they Survive the Current Economic Downturn?
On April 30, 2009, partner Tyler Berding will offer new insights to a topic he has been writing about for the last 10 years: the challenges faced by undercapitalized associations confronting large repair costs.
Saturday April 30, 2009
The topic remains as fresh and timely as ever and we hope our clients and friends can attend.

TOP ISSUES
QUESTION OF THE WEEK
Question:
"What is a Common Interest Development?"
Answer:
A common interest development is real property that combines individual ownership (separate interests) with property held and managed in common among all of the owners (common area.)
What Happens When a Community Association Fails?
Does the experience in Florida presage the future for California?
We have written many times about the difficult future of the housing industry and that of common interest developments in particular.
Underfunded reserves have given way to underfunded operating budgets as the economic crisis deepens and community associations are finding layoffs and foreclosures beginning to impact their ability to pay for even daily operations as assessment payments dry up…»
Private New Towns —
A promising new concept saddled with
an old problem?
The City of Hercules, once known for The Hercules Powder Company, a manufacturer of dynamite, is redeveloping its old industrial properties into what has become one of the most explosive new ideas in housing and one of the finest communities of its type on the West coast…»
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All Rights Reserved.
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