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Subject: HOA tree fell into house. Who’s responsible?
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CandiceS
(California)

Posts:9


04/10/2019 5:39 PM  
California residence...

Palm trees planted 30 years ago on front yards of residences as part of the planned development and is maintained by HOA (common area). Twice a year the HOA has a tree trimming service come out to maintain them, removing the seed pods and removing hanging fronds.
Strong winds and rain are concerning the homeowners in the event these weather conditions send it toppling onto their house.
If this does happen, who is responsible for the damage?

TimB4
(Virginia)

Posts:16257


04/10/2019 5:56 PM  
Typically, for what is determined to be an act of god, the HOA would pay to remove the tree and debris from your property line to where it fell.
Your insurance would pay for the damage to the home and removal of the tree from your property.

Now the typical exception to the above is if you can prove negligence on part of the Association.

It sounds like your Association is maintaining the trees. They are being serviced and inspected twice a year.
Therefore, the issue of a tree falling as you described would be considered an act of god.
CandiceS
(California)

Posts:9


04/10/2019 6:01 PM  
Thank you Tim! Sounds logical.
JoyceR2
(Virginia)

Posts:143


04/10/2019 6:46 PM  
Inspecting by a qualified arborist inspect trees is different than having someone maintain them. You might see if the forestry department will insect all the trees on the property & provide a report. They may do it for free.
JoyceR2
(Virginia)

Posts:143


04/10/2019 6:46 PM  
Inspecting by a qualified arborist inspect trees is different than having someone maintain them. You might see if the forestry department will insect all the trees on the property & provide a report. They may do it for free.
RichardP13
(California)

Posts:3424


04/10/2019 6:58 PM  
Actually the way it would work is you file a claim with your insurance company who in turn would work with the HOA's insurance company who would handle the settlement. Why should your insurance pay for something that is owned and maintained by your HOA. Also, you wouldn't want the loss going against you.
GeorgeS21
(Florida)

Posts:1179


04/10/2019 7:03 PM  
So, this is not true?

“HOA tree fell into house...”

What you meant to say was “What if a tree ... etc?”
SamE2
(New Jersey)

Posts:67


04/10/2019 7:53 PM  
I can tell you in PA that if a neighbor's tree falls onto your property you are responsible for the damage as long as the tree was not neglected. I would think the same would be true with a tree that falls on your house that the HOA owns but I never needed to report that type of claim. However, in our multi-story condo if there is water damage caused from a problem above you you are responsible for the repairs to your unit. I agree with Tim.
MarkM19
(Texas)

Posts:256


04/10/2019 8:01 PM  
I see this as a clear HOA responsibility. When I was President of an Association in Ca. we had trees that were planted and maintained by the HOA that were in the mow strip in front of each house and along our entrance. When one of those tress caused damage we paid the bill. If a homeowner hit the tree and it fell they paid. Our property was approaching 20 years old and several large trees along our main entrance started to have tree root problems and caused sewerage problems in homes. We thought that it would be considered HO problems. We lost in small claims court and had to pay the damages.

Your Trees your damage. I was happy to move out of this HOA as we had over 1700 planted time bombs waiting to go off.
MelissaP1
(Alabama)

Posts:7990


04/10/2019 8:28 PM  
I had this experience. Tim's advice is pretty much spot-on. There are variables of course. Like if the tree falls due to neglect or by hurricane. Insurance considers them a bit differently and can expect a different deductible rate. The HOA does pay for the clean up and their deductible if the amount is more than cost of repairs. Your HOA is taking on the responsibility of tree care so it's taking responsibility for the trees.

My last week as President this happened to us. A Southern Pine tree had quickly thawed out and fell onto the house next door kitchen area. The tree had been infected by pine beetles known by an arborist we had come out years ago. Just could not afford to cut them down. The yard the tree was in, had no insurance. The house it hit did. Our HOA is set up that you own the house and the lot it sits on, everything else is "common property". The tree was on that common property and original leftover from builder 25 years ago. The tree went through a fence as well. The HOA doesn't own fences but gives approval for them to be built.

We ended up paying out $1500 for the clean up. Which was the cutting up of the tree off the property. The homeowner's insurance picked up the house damage. They in turn went to the neighbor to collect whom the tree was from. Our deductible was like 20K so it wasn't something we could pay if we put it on our insurance. Something may need to check out on how much deductible is.

On the personal side, my tree fell on my neighbor's house. It was diseased. So the insurance covered his roof/damages. Did not have to pay anything out of pocket. However, the claim was put on my insurance. That will go against me as far as how many insurance claims I've filed. Which in the long run can effect my insurance rates or ability to get insurance. Something else that may happen with the HOA if they make a claim.

Former HOA President
CandiceS
(California)

Posts:9


04/10/2019 8:57 PM  
Yes George you are correct in presenting the question your way.
I stated my question as it just happened.- surprise! Now what happens.

Thank you
RoyalP
(South Carolina)

Posts:578


04/11/2019 5:59 AM  
http://www2.mnbar.org/benchandbar/2002/mar02/tree.htm

Negligence: Hazard Trees and Limbs
The trend across the country is to hold tree owners legally responsible for damage caused by unsound or "hazard trees."11 A hazard tree is a tree with a defect plus a target, such as a sidewalk, a car, or a house in the path of an unstable or decaying tree.

Minnesota cases involving negligence in tree law tend to fall into two categories: damage caused by trees or damage done to trees. Foreseeability is the common thread that runs through both types of claims. In both instances, courts will look at what should have been obvious to the tree owner about the tree's condition.
Damage Your Client's Tree Causes. If a neighbor's tree is unsound and threatens your client's property, the neighbor may be liable for any damage that occurs. The test is whether the tree owner knew or should have known that damage was likely. A tree owner is not expected to be a tree expert, but she is expected to recognize obvious symptoms of a problem, such as the unseasonal lack of leaves, a dead limb, visible decay, or a tree leaning dangerously to one side. If the potential for damage is foreseeable and if the tree owner fails to take corrective action, the courts will likely hold the owner legally responsible for damage caused to people or property.

In an unpublished opinion, the Minnesota Court of Appeals found that a landowner was not liable in a personal injury case where the landowner's tree did not pose an obvious danger.12 In that case, a tree trimmer was injured when a decaying branch broke. Liability was not imposed, because the branch appeared to be sturdy and showed no signs of decay. In another case, a landowner was found to owe no duty to protect a pedestrian from a low-hanging branch that was clearly visible.13
What's Entropy Got to Do With It? A Georgia case that reaches the same conclusion about foreseeable danger is worth quoting. Taking judicial notice of the Second Law of Thermodynamics, the court said,
This law tells us that all in the universe, trees, human beings, plants, animals, buildings, and all else are headed downward from complexity to simplicity toward decay, deterioration, decadence, and death. Everything heads towards decay; for example, a tree decaying, which is an increase of entropy, or uselessness. We are specifically limiting liability to patent, visible decay, and not the normal, usual, latent, micro-nonvisible, accumulative decay. In other words, there is no duty to consistently and constantly check all pine trees for non-visible rot, as the manifestation of decay must be visible, apparent, and patent so that one could be aware that high winds might combine with visible rot and cause damage.14
Act of God. A frequently heard excuse is that damage caused by a fallen tree was an act of God. Not every tree that falls over in a strong wind and causes damage is the result of an act of God.17 To qualify as an act of God in negligence cases, all of the following elements are needed: 1) the accident must have happened from a force of nature that was both unexpected and unforeseeable; 2) that force must have been the sole cause of the accident; and 3) the accident could not have been prevented by using reasonable care.18 A bolt of lightning is an act of God, if it is the sole cause of an injury. However, a person is liable if his own prior negligence combined with the act of God to cause the injury.



Notes
1 Holmberg v. Bergin, 172 N.W.2d 739 (Minn. 1969).
2 Minn. Stat.¤561.01
3 Holmberg v. Bergin, supra.
4 Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931)
5 Richmond v. General Engineering Enterprises Co., 454 So. 2d 16 (Fla App D3, 1984).
6 Holmberg v. Bergin, 172 N.W.2d at 744.
7 Booska v. Patel, 24 Cal. App. 4th 1787, 30 Cal. Rptr. 2d 241 (1994).
8 Michalson v. Nutting, supra, 175 N.E. at 490.
9Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (1939)
10 See, e.g., Skinner v. Wilder, 38 Vt. 115 (1865).
11 "Hazard tree" is a term of art used by arborists and tree scientists.
12 Allison v. Olson and Mauer, filed December 12, 2000, C0-00-942 (unpublished). http://www.lawlibrary.state.mn.us/archive/ctapun/0012/942.htm
13 Sperr by Sperr v. Ramsey County, 429 N.W.2d 317 (Minn. App. 1988).
14 Cornett v. Agee, 143 Ga. App. 55, 237 S.E.2nd 522, 524 (1977).
15 Rector v. McCrossan, 235 N.W.2d 609 (1975)
16 Guide for Plant Appraisal, 8th Ed. 1992.
17 Swanson v. LaFontaine, 238 Minn. 460, 57 N.W.2d 262 (1953)
18 VandenBroucke v. Lyon County, 301 Minn. 300, 222 N.W.2d 792 (1974)

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