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Every person, from homeowner to lawyer, represents a unique perspective. As a board member, each perspective demands unique attention and can push you in different directions. In this series, we will examine some common issues facing HOAs, identify a variety of important perspectives, and use information from industry experts to offer a comprehensive view.
“The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way. Some see nature all ridicule and deformity... and some scarce see nature at all. But to the eyes of the man of imagination, nature is imagination itself.” - William Blake
“Seriously, did that squirrel just jump on my roof again from my neighbor's tree that needs to be pruned? I'll be pulling out my shears tomrw" - Somebody on Twitter
What is a tree to you? To your neighbors? Trees can represent beauty and shade, increased property values, maintenance expense, nuisance, and liability. Where you see beauty, your neighbor may see only a mess in the yard, a raised sidewalk, or a damaged roof. How do you respond to the challenge to see problems through all eyes: to recognize different needs, and to respond objectively?
California has (mercifully) dodged the polar vortex engulfing the East Coast, but the winter season can still cause difficult times for associations with large trees. While trees provide aesthetic value to a landscape, they can also cause disputes between neighbors, and demand a great deal of planning, maintenance, and care. Issues of legality and liability seem to arise most often during the winter – a time when storms and natural disasters can cause trees to fall over and injure residents or destroy property. Here we summarize the most common tree-related issues faced by HOA boards: tree planning, maintenance and liability.
Treescape Planning
Elizabeth Lanham, Certified Arborist for Serpico Landscaping, believes that deliberate and organized tree planning is the key to producing an attractive and safe landscape. Indeed, planting trees in the wrong place can lead to unanticipated consequences. A tree planted near concrete, for example, can create safety hazards and maintenance issues if its roots displace the sidewalk or street. The key to tree planning is to research and understand different types of trees before embarking on landscape renovation. In her article, “Happy Trees, Happy Homeowners,” Lanham has outlined a few things to consider when planning your treescape:
- What is the potential size of the tree and its roots once it is full grown?
- Is the tree fruit-bearing? If so, will it be planted in an area that will not create a nuisance when fruit drops?
- Are trees planted a safe distance from power lines and underground utilities?
- Are the trees native and/or appropriate for the type of climate in which you live?
- It may be helpful to hire an ISA-Certified Arborist to help select the right trees and inspect the trees before installation to ensure that you are planting good quality nursery stock.
Maintenance
Trees provide beauty and shade during the summer, but can become a liability when natural disasters strike. Having a landscape maintenance strategy is especially important for the winter season, given the possibility of stormy weather and safety issues. Robert Booty, Principal Consultant for Arborist OnSite, answers frequently asked questions regarding tree failure and discusses maintenance tips in his article, “Can You Sleep on a Stormy Night?”
Some of his suggestions include:
- Have trees inspected by a qualified and knowledgeable professional, such as an ISA-Certified Arborist.
- Ensure that all trees are properly pruned and/or thinned.
- Check for cavities and fungal growth on tree trunks, which may indicate decay.
Legal Issues
In order to avoid liability and damage, HOA attorney Tom Fier advises that boards become familiar with local and state laws regarding tree planting. Further, Fier recommends that the board assigns responsibility for maintenance of trees and landscaping. As it relates to trees, the California Civil Code Section 3346 outlines ownership and damages for injury, and describes what factors constitute a nuisance. In his article "Trees," Fier outlines the most common legal issues among HOAs regarding trees: removal, view and/or privacy issues, overplanting, and cost as it relates to maintenance and planning. As a means of preventing further liability, Fier recommends hiring a tree expert prior to making any changes to pre-existing landscaping.
Whether you are dealing with current tree problems or just planning ahead, try to keep each of the perspectives above in mind. These tips above can enhance property values, and help your HOA reduce the risk of tree-related injuries and potential lawsuits.
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Comments
Board Members Talking to vendors
As a board member, I would love to be able to ask vendors questions about "proposed" or "planned" work that I as a board member need knowledge about to determine if the work can be done, should be done and if so how the work should be done. The Property Manager tells me that I can not talk to vendors (those without a contract with the Association) for informational purpose. Board members being treated like mushrooms (kept in the dark, and feed one side views of the PM) and then asked to vote on a contract at at regular Board meeting is so against what I feel a board member should be doing.
Advise me how I can go about gathering information on future projects. I know not to offer contracts, even mention there might be one, so what is the problem here.
Earl Maple, Board Member, Greystone Landing, Huntington Beach, CA
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Solar panel policy was discussed at a recent HOA meeting. It is my understanding legal counsel must provide the language which is incorporated into the CC&Rs. Is this true? I have been advised that there is "boiler plate" language which can be used without going through an attorney. Is this true & if so where can it be found?
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Board Members Talking to Vendors - reply 10-18-2014
My understanding of the fiduciary duties of a Board member suggests they protect the HOAs rights, avoid doing harm, and maintain legally required pivacy rights.
I certainly don't know it all, and have not read it all either, but I would be very disappointed to find there is any legal basis preventing anyone including a Board member from educating themself about matters their HOA is or may need to address by hiring a contractor. In fact, though the Davis-Stirling Act provides guidance allowing a Board to pay for professional advice, and education, I have not read anything that suggests it prevents an individual Director from speaking with vendors (if there were an ongoing legal dispute with a vendor, that would seem a reason to not speak at least about the subject of the dispute). Disclosure: my ideas are not legal advise, and I am not a lawyer.
It is possiblle that a Property Mgr. is a control freak, or had previous bad experiences, and also wants to avoid too many points of contact. The easy solution is to invite vendors to address the whole Board so they can all get the benefit of learning together. However, for a Board member to speak with a vendor who is not contracted to the HOA (without revealing any proprietary info) is not much different from doing any other form of research.
It's as crazy as the idea that a director should not have the right to cast a disenting vote! Consensus means we all agreed to go along wether we like the decision or not. Fiduciary duty means even if you voted NO, when over ruled, you must now publicly work to make that policy work, rather than to under-mine it. Big difference.
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