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Subject: Tree roots & dirt pushing on my condo
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AmyT1
(California)

Posts:10


06/04/2016 7:54 PM  
Hi, we are condo owners, and love our neighbors, board, etc. Our unit is in the back and we have a slope behind us with large oak trees. The roots and dirt are pushing against a solid cement v ditch (it is about 2 ft tall and the roots have cracked and lifted it.) The drainage ditch then puts pressure on the 2 foot common wall that separates it from our patio.
I don't know if either of these constitute a 'retaining wall' or if one is legally necessary.

The roots/earth push on the common wall which is now slanting in toward our patio. (It is stucco). Our patio has cracked and lifted so much (it is cement with tile on top) it looks like something is about to hatch out of it. There is a very small place in our patio that is open, where the spicket is. We keep it covered. I can reach in and grab a handful of roots. Also, when it rains the v ditch has about a 1/2 in. lifted crack so water drains directly under our patio and not out to the street as it is supposed to, and then 'sits' at our foundation. Once it was 3 1/2 inches. It just slowly drains under our house.

Our house is sinking. We have roots growing out of our foundation. There has also been a drip line right at our foundation which has been a source of water to the tree roots. We have so much pressure on our house that the walls are bowing, my kitchen window area sunk so low I can stick my finger in the space between the window and the condo. Had to tape it.

Our board is nice. I have been giving them all this info, pictures, etc. A claim was filed and a structural engineer did a report for ins. company. Apparently nothing proved HOA had been negligent so claim denied. I have asked HOA for a cc of report but have not yet had a response. I don't think anyone thought of this 30 yrs ago when condos were built, but our house is being attacked! Closet doors change from shutting proper to (overnight) having big gaps. Cabinets aren't shutting, etc.

I do not think my neighbors want this to happen, but I also don't know if we have reserve money for this. Since the first engineers report and then the denial, things have just been in 'limbo'. We don't want to loose our condo or put stress on our reserves. The claim is not closed yet, she just said 'failed to prove HOA liable. Any advice would be great.
MarkM31


Posts:0


06/04/2016 8:09 PM  
Don't worry about your reserves or your neighbors. Call a certified arboreal consultant and get a report on the cause, chances of worsening and mitigation. Then make a claim against the owner of the tree for repair and mitigation
http://www.asca-consultants.org/search/custom.asp?id=3818
AmyT1
(California)

Posts:10


06/04/2016 9:08 PM  
Thank you for your response. The HOA (months ago) did send out their own arborist (tree is in the common area so it is owned by HOA) but all he did was assess the health of the tree. He was not permitted to comment on my patio, just to say that the tree was healthy.

This is the same report that was sent to the ins. company when I was able to get HOA to submit claim. If you happen to know, is there a specific type of arborist to look for, as far as being able to say "this is causing it, and they are liable"?
MarkM31


Posts:0


06/04/2016 9:27 PM  
Posted By AmyT1 on 06/04/2016 9:08 PM
If you happen to know, is there a specific type of arborist to look for, as far as being able to say "this is causing it, and they are liable"?




I gave you the link. An enrolled member of the American Society of Consulting Arborists. Decidedly not an arborist
AmyT1
(California)

Posts:10


06/04/2016 9:48 PM  
Mark! You made my day. Thank you; (shoulda looked a little closer at your post, I guess).

Again,
Thank you!
LarryB13
(Arizona)

Posts:4099


06/05/2016 12:44 AM  
Amy,

It sounds like your board is like most other condo boards: totally clueless. You are likely going to have to give them a wake-up call of some sort.

You might start by trying to file a claim under your own homeowner's insurance. The board's negligence is causing you to suffer a loss. Once your insurance carrier discovers the cause of the loss they will try to recover costs from the association's insurance.

Another avenue is to hire an attorney to make a demand for repairs on your board. While you could make such a demand yourself and it would carry the same legal weight, few things wake up people better than a letter from an attorney demanding some sort of action. Please note that hiring an attorney for this purpose does no obligate you to file a lawsuit, even if such action is threatened or implied in the letter.

TimB4
(Virginia)

Posts:17439


06/05/2016 3:03 AM  
Amy,

To expand on Marks information, I found an article, http://www.treelaw.com/articles/clm.3.02.html. The article was written for attorneys considering tree cases. The article included the following:

Do not confuse a certified arborist with a consulting arborist. Anyone who passes the test administered by the International Society of Arboriculture, the trade organization for the arboricultural industry, may become a certified arborist. While there are many certified arborists who may be qualified to serve as a consultant, there are many more whose only qualification is that they have a pick-up truck and a chainsaw. There is nothing inherent about being a certified arborist which prepares the arborist for performing forensic work or valuation of damages. A consulting arborist with forensic training, regardless of "certification," is the appropriate expert to look at questions of causation and valuation. To find a qualified consulting arborist in your area, contact the American Society of Consulting Arborists in Rockville, Maryland at (301) 947-0483 (e-mail: [email protected]) or check their online referral database at http://www.ascaconsultants.org. You could also consult a local attorney specializing in tree disputes for recommendations.
MarkM31


Posts:0


06/05/2016 7:20 AM  
Posted By TimB4 on 06/05/2016 3:03 AM
Amy,

To expand on Marks information, I found an article, http://www.treelaw.com/articles/clm.3.02.html. The article was written for attorneys considering tree cases. The article included the following:

Do not confuse a certified arborist with a consulting arborist. Anyone who passes the test administered by the International Society of Arboriculture, the trade organization for the arboricultural industry, may become a certified arborist. While there are many certified arborists who may be qualified to serve as a consultant, there are many more whose only qualification is that they have a pick-up truck and a chainsaw. There is nothing inherent about being a certified arborist which prepares the arborist for performing forensic work or valuation of damages. A consulting arborist with forensic training, regardless of "certification," is the appropriate expert to look at questions of causation and valuation. To find a qualified consulting arborist in your area, contact the American Society of Consulting Arborists in Rockville, Maryland at (301) 947-0483 (e-mail: [email protected]) or check their online referral database at http://www.ascaconsultants.org. You could also consult a local attorney specializing in tree disputes for recommendations.




That explanation for ambulance chasers is a little misleading. A ISA Certified Arborists must have verified training, pass a series of test and take continuing education credits to get and maintain an ISA certification. An ASCA needs and does even more. A hazard tree report about which trees and branches are dead and dying can be done by an Arborist. assessment of why a structure is sustaing tree root damage is the job of a CA.
JackieA
(Tennessee)

Posts:1


06/07/2016 2:02 AM  
It is a relatively low expense (compared to the cost of your home) to consult an attorney and have that attorney notify the HOA of it's obligations. You would probably want to hire an attorney who is experienced in HOA law, rather than hire a general attorney.

If it is only a tree and not the earth shifting then it should be pretty easy to stop the tree roots from encroaching on your property. However, the question is, how much of the tree roots are going towards your property and how tall is the tree. At worst, given the amount of money you have in your home, it might be worth it to cut the tree down and then negotiate with the HOA afterwards as to the value of the tree. In California a tree's roots and branches can be cut at the lot line. But I don't know if that works with a condominium. There are root poisons that can be applied to the soil that will kill roots. They must be used with care because they can harm people (they affect DNA synthesis). But if the roots are necessary to stabilize the tree against the force of the wind then killing the roots will cause a hazard as the tree might fall down. It sounds like a small tree that has now grown too large and is too close to the home.

No expertise here, I work with computers.

Yours,
Jackie
JamesG11
(Florida)

Posts:118


06/07/2016 4:37 PM  
Hi Amy,

I presume from your post (although you don't state so explicitly) that the oak tree(s) causing your damages is(are) located on association common property.

I am not conversant with CA law, but I concur with the suggestion that you consult with a properly credentialed and experienced professional/consultant ASAP. I also strongly suspect that if you do that, the professional/consultant will likely be in the position to recommend an experienced CA attorney (and hopefully more than one) to help you resolve the issue you're facing.

FWIW, in Florida, a condominium unit owner -- under the facts as you've presented them -- would most likely have recourse against her condominium association (...and the condo association would most likely have insurance coverage to help deal with the liability). This is a very important point: the condominium association might not have liability on Day 1 if it were not on notice of the encroaching tree roots (and their imminent potential to damage your private property), but once you placed the Board on actual notice of the problem, it would have a legal duty to deal with the issue in a reasonable manner.

Simply submitting an insurance claim and then passively accepting the response that the Association/the Association's insurance company is not on the hook should not be dispositive (and doesn't strike me as reasonable at all). Frankly, it may be the case that the Association's legal counsel isn't the brightest bulb in the chandelier if he/she is advising that no further action is warranted on the Association's behalf.

Good luck to you. Keep us posted.

Best, Jim
AmyT1
(California)

Posts:10


02/21/2021 2:35 PM  
hello,

I attempted resolution over the course of about 18 months, in 2015/2016. Here is the issue once again, but short and to the point:

1: V ditch behind my unit sits between oak tree and my back patio. V ditch and tree are in common area. V ditch has a large crack from tree roots. Water flows down the V ditch when it rains, but does not drain to street, it goes straight down the crack and under my patio. Major oak tree root issue under my patio. Lifting, cracking, separating. I went to annual meeting in 1/2016, stood before board and presented info and pictures.

I have given board VIDEO of water flow doing this. I have given them VIDEO of water at my foundation. (solid patio, with a cut out by home foundation.) Lots of emails, a claim was filed through HOA, adjuster said I had not proved negligence on HOA.

They sent someone out to jackhammer through my patio to see if there were tree roots in the cracked and lifted area. There are lots, a couple were as big as a garden hose. I took pictures, board was aware, etc. They filled it with sand and gave report to HOA.

The report from HOA's 'jackhammer guy' states two possible causes: tree roots, or an improper cement pour that was done to extend the original r exsisting patio. Report states the new slab was never 'joined' to existing patio slab. (this was done by prior owner). I asked HOA for info on Co. that did improper extention but was told there wasn't any, and this was an "inherited problem".) There is also an improper gas line that was run under patio, and an improper drainage area. The board and our mgmnt co were all fully aware of these issues.

They sent me a letter and offered me $2,000. toward the patio work, without stating any responsibility. They wanted me to take the issue on myself. This was way too big of a project for me, plus its not my issue to fix. (In a previous email with HOA I had told them I was fearful of hitting gas line.) I did not respond to the offer letter. That was in Nov. 2016. They did come out and fill the v ditch crack with some sort of putty stuff, but it lifted right back up again.

When I did not respond, board and mgmnt co were emailing with each other regarding issue. It was a 'what do we do if she doesn't accept offer' kind of conversation. I was inadvertently cc'd on an email which stated "we need to meet and come to a consensus on this. We have to restore the patio to it's original condition. Minus all the problems, of course." That statement came from our mgmnt co. That was the end of that. I was tired of working so hard.

Tiles are now cracking and lifting right outside my slider. We have a new mgmnt co, and I have sent a message to them. I told them that the lifting tiles present a trip hazard. They got right back to me, and said they would 'research the history of the tree' and get back with me. I have MS, my walking is shaky. I have two dogs that I take outside several times a day.


How long should I wait for new co. to respond? I am hoping they will review all docs from this and help me.

Thanks.






TimB4
(Virginia)

Posts:17439


02/21/2021 3:07 PM  
Thank you for the update. It's rare that occurs and it is appreciated.
Sorry to see that you are in your 5th year of dealing with this (initial post in 2016)

Regarding the storm water management ditch (v shaped structure), contact the local EPA and let them go after the board.

The final solution is that the tree needs to be cut down and stump/roots ground up.
Otherwise, any repairs will simply fail due to the tree roots.

It is common practice for developers (with municipality permission) to plant trees and shrubs with invasive root systems far too close to buildings. Wish that would change, but it likely won't.


Best advice at this point would be to talk with your insurance company and let them fight the fight with the HOA. Otherwise, you may want to contact an attorney, as offering to pay some money is admitting responsibility.
AmyT1
(California)

Posts:10


02/21/2021 3:58 PM  
Thank you. I thought that also. (about $) I think I will give our new mgmnt co. a bit, to see if they can look thru history and respond.

Thanks again.
AmyT1
(California)

Posts:10


02/23/2021 1:31 PM  
to: Timb4:

"Offering to pay some money is admitting responsibility". Forgive my ignorance, but is that definative?"
TimB4
(Virginia)

Posts:17439


02/23/2021 2:27 PM  
Posted By AmyT1 on 02/23/2021 1:31 PM
to: Timb4:

"Offering to pay some money is admitting responsibility". Forgive my ignorance, but is that definative?"




Definitive, no.

It would be a good argument.

In a situation where there is an argument of fault, the offering of a settlement (money) would beg the question why offer the money if you believe you are not at fault.

This is why I said to contact an attorney.
They would know if the offer would indicate fault or something else.
AmyT1
(California)

Posts:10


02/23/2021 4:42 PM  
Thank yo!
JohnC46
(South Carolina)

Posts:10651


02/24/2021 12:32 PM  
Amy
The MC cannot pay any monies that the BOD has not authorized so do not hold out hope for this. The problem is back in the BOD's lap. Time to hire an attorney and fight the BOD.
AmyT1
(California)

Posts:10


02/24/2021 2:18 PM  
Hi,

The $$ *was* offered by the board, in a letter sent from mgmnt. co.

They wanted us to take on the whole issue, and they would give us $2,000. Letter states "the board's offer is firm on this."

I did not respond to the offer. That is when Mgmnt./board were emailing with each other, kind of a 'what do we do if owner does not respond to offer?"

That was when we inadvertently were cc'd on one email, which stated "we need to meet and come to a concensus on this. **The patio must be restored to its original condition. Minus all the problems, of course."** After that (in 2016) it was not addressed again.

Our board denied our request to have city come out and advise us on how to handle. That was back in 2016. (City needs a signed form from whoever 'technically' owns tree. Tree is on HOA land.)

Correcting this will be a large undertaking. Our whole patio is solid slab and tile. It will need to be jackhammered up and removed. It is lifting and cracking alot, changing daily almost.

We do have new mgmnt. co now, and I sent 'repair request' a few weeks ago, letting them know tiles were now lifting and separating right outside our slider. I advised this was a trip hazard. They responded right away stating they would 'research history of trees around our unit a get back to us. It seemed sincere.

I will wait a bit. Hopefully resolution.

Thanks to all for input.
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