Dealing with Tricky Tree Issues

Dealing with Tricky Tree Issues

By Michael Sottolano and Lauren Ritter

Disputes can arise between owners and their association regarding who is responsible for maintenance or removal when once healthy trees in the community begin to show signs of death or disease, especially when the trees are located near homes or other structures.  Whether the association or owner is responsible (and could be held liable for damages which result if the tree, or a part thereof, encroaches on neighboring property or falls and causes injury or damage) will often depend on whose property the tree is located on, whether modifications or alterations have been made to the property, and what the association’s governing documents provide.

Case Law

In 2007, the Supreme Court of Virginia issued an opinion in Fancher v. Fagella[1], now considered a landmark case that changed the rule of law concerning encroaching vegetation that had previously been in place for over sixty years.  The Fancher case concerned the roots and overhanging branches of a sweet gum tree that were allegedly causing structural damage to an adjacent townhome.  In Fancher, the Court upheld the long-established right of an adjoining landowner to exercise self-help to protect his property from encroachments and adopted a new standard for determining when it may be reasonable to impose an actual duty on a landowner to protect his neighbor’s lot from damage caused by the “nuisance” of intruding roots and branches.  The Court indicated that while it may be unreasonable to impose a duty “upon the owner of historically forested or agricultural land” that an actual duty may exist on the owners of adjoining residential lots to protect neighboring property from damage caused by such encroaching vegetation.  Building off this principle, a landowner may also have the right, depending on the extent of damage caused by encroaching vegetation, to seek money damages or pursue an injunction against the owner of the neighboring property to compel that owner to correct the “nuisance” vegetation.  Recently, however, in its opinion in McDiarmid Assocs. v. Yevdokimov[2], the Supreme Court of Virginia clarified an important limit on this principle applicable to injuries caused by a tree falling on neighboring property.

Dealing with Trees on an Owner’s Property

Homeowners are generally responsible for maintaining the trees located on their property; however, the association’s governing documents (especially for townhouse communities) may prescribe that the association is responsible for maintenance of trees and other landscaping features on the owner’s property or that the association is responsible for removal of diseased, dying or fallen trees in the community.  Therefore, if a tree located on an owner’s property appears damaged, diseased, dying or has fallen and is in need of removal, it’s a good idea to check the association’s governing documents to confirm which party the governing documents provide is responsible for addressing the matter.

If pursuant to the association’s governing documents the owner is responsible for keeping his property in good order and repair, including maintenance and care of the trees and/or landscaping features thereon then, unless some other more specific provision of the association’s governing documents expressly provides otherwise, the owner would be responsible for removal of fallen trees, limbs, branches, etc. on his property.  Whether the association could require an owner to remove a dying, dead, diseased or otherwise unstable tree that has yet to fall from the property would depend on the terms of the association’s governing documents and any applicable maintenance rules or guidelines (additionally, whether the association may prevent owners from removing an otherwise healthy tree from their property would depend on the terms of the association’s governing documents and any applicable rules or guidelines).  The association and owners, however, should keep in mind that, consistent with the court’s ruling in the Fancher case discussed above, a landowner who fails to correct nuisance vegetation on his property which has caused actual harm or poses an imminent danger of actual harm to a neighboring property risks being held liable for damage which results to the neighboring property.

When considering removal of a tree from the owner’s property, there are also a few questions that should be addressed before the tree is actually removed: (1) does removal of the tree require approval from the association?; (2) is the owner required to install a replacement tree?; and (3) are there zoning provisions or proffers that are affected by the removal of the tree?

Some association’s governing documents require owners to submit an exterior modification application before a tree is removed or require homeowners to plant a new tree when one is removed (note–sometimes, even if the governing documents would normally require association approval for removal or new installation of trees, there may be an exception provided for in the governing documents for situations where the tree is dead, dying, or diseased). The requirement to replant can also come from the association’s proffers or the local zoning ordinance, which may require the development to have a certain number of trees planted on each lot or throughout the community.

Dealing with Trees on Common Areas/Elements

The association may generally engage in tree removal, root removal, and branch trimming of any vegetation that grows on the common area or common elements.  Additionally, if a tree on a neighboring property to the common area/elements is hanging over the boundary line of the properties (or the roots are extending from the neighboring property into the common area/elements) and posing the possibility of damage to the common area/elements, the association has the right to cut back the encroaching portions of the tree to the boundary line of the properties.  Keep in mind, however, that while the owner of a property which neighbors the common area/elements would have the same right as the association to cut back the encroaching portions of the tree, most association governing documents will prohibit an owner from making changes to the common areas/elements, such as the cutting back or removal of trees, without association approval.

What to do if an owner removes trees from the common areas or common elements without permission?  Check the association’s governing documents for the remedies that are available to the association, which may include: (1) the association replaces the tree and assesses the cost to owner; (2) the owner replaces the tree at the owner’s expense (voluntarily or through injunctive relief); (3) the association levies violation charges against the owner; and/or (4) the association suspends the voting rights and/or other privileges of membership of the owner, etc.

TIP: If the Board suspects or becomes aware of an owner removing trees from the common area/elements (or the owner’s property if approval by the association is required for removal) without permission, take photographs immediately. Pictures of how the property appeared before and after the removal can be helpful in establishing damages if the matter needs to be litigated (keep in mind, the relief likely to be requested by the association in these types of lawsuits will be that the owner replant a tree of similar species, size and maturity as that which the owner removed; a picture of what was removed can go a long way towards demonstrating to the court what needs to be installed).

Untangling tricky tree issues can be challenging!  Remember, your association’s legal counsel is here to help and can provide valuable advice if you’re stumped.

[1] Fancher v. Fagella, 274 Va. 549 (2007).

[2] In McDiarmid Assocs. v. Yevdokimov, 2022 WL 2284337, the Court opined that absent a situation where the property owner had a duty to act and under circumstances where a nuisance is not at issue or the property owner has not engaged in an affirmative act to alter the natural state of the land through an act of misfeasance (i.e. performing a lawful act in a wrongful manner) or malfeasance (i.e., performing an act wrongful in itself), that a party injured as a result of a falling tree may not be entitled to damages from the property owner.

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Legal Disclaimer: The information in this article is not intended to be legal advice. Legal advice must be tailored to your specific facts and circumstances and your association’s governing documents.  Neither this post nor the CWMEB Journal is intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the individualized advice of your legal counsel.

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