Residents in heavily wooded communities often express concern about potential damage from trees that extend over their homes and vehicles. The question is always the same—if a tree or limb falls on the resident’s property, who is responsible for the damage? To answer this question, the association should examine the following:
Is the tree on property that the association owns or maintains?
If the tree is not on property that the association owns or maintains, the analysis may stop here. This is because the association will probably not be responsible for trees it has no control over. Remember, the association is not an insurer against all loss within the community, so, for example, if one resident’s tree falls on another resident’s property, this will most likely be a dispute between the two residents. If, however, the tree is on property that the association owns or maintains, the analysis will continue below.
What does the association know about the fallen tree or limb?
From a liability standpoint, the next item an association should consider is whether the association had prior knowledge of an issue with the fallen tree or limb. If it falls as a result of unusually heavy wind or rain, and the association was not aware of any issue with the tree, the resident may have trouble holding the association responsible for the damage. On the other hand, (1) if the association was notified that the branch was unhealthy or could pose a potential threat to property, and (2) the association subsequently fails to take any action to address it, a resident who suffers damage to property may be able to hold the association responsible.
What should the association know about the fallen tree or limb?
Boards and managers frequently get questions about maintenance of the common property, especially when it comes to trees. If a resident complains about the condition of a tree or limb, but the association’s inspection reveals that it is covered in green leaves and shows no signs of distress, the association could make a reasonable determination that the tree is healthy. In this scenario, the association could reasonably decide not to take any action with respect to the healthy tree. The association should document its inspection by taking photos of the tree, which show the date and time of inspection.
If the tree or limb does not look healthy, the association should consider hiring an arborist to inspect the tree and advise the association on how to address the potential problem. After the arborist’s inspection, the association should request a copy of the inspection report indicating the date of the inspection, the arborist’s opinion of the tree’s condition, and the proposed plan of action. The association should then act as quickly as possible to implement the recommendation.
If the association has a landscape contract, the association may want to include an annual or biannual inspection of all the trees it owns and/or maintains. After the inspection, an arborist may be able to identify some unhealthy trees or limbs, which means he or she may also be able to provide the association with a written report of any recommendations and/or concerns.
Will the association’s insurance cover the damage?
If a tree or limb falls as a result of an insurable event, and the total amount of damages from the insurable event exceeds the deductible on the association’s master insurance policy, the insurer might cover the damage caused by the fallen tree or limb. In this case, the Association would only be responsible for paying the deductible, rather than the total amount of damages. Conversely, if there is no insurable event, or if there is no master insurance policy in place, the liability analysis above—in conjunction with the applicable maintenance provisions in the association’s governing documents—will control. Any questions regarding the maintenance obligations under the governing documents should be directed to your association’s attorney.