Q: We are members of a homeowner’s association. Our patio, which our dog frequents, has leaves and berries that fall from a nearby tree (part of the common area). Our dog became ill several times and we have now been informed by our veterinarian that the leaves and berries from the tree can be toxic to dogs. Should the association be required to remove the tree?
Y.B., Ventura
A: The association has responsibility to maintain the common area landscape. If the tree is poisonous to your dog, it is unclear to me how the association may justify leaving it there. Is your dog the only pet who has gotten sick? Trimming will not avoid all the droppings, will it? Further information about the tree would be useful.
The circumstances you set forth are concerning. California Penal Code Section 596 makes it a misdemeanor for someone to knowingly poison someone’s pet. In either event, it seems that the quiet enjoyment of your home is being negatively affected by that tree. If so, this can constitute a nuisance, which may call for injunctive relief and damages.
Consult with qualified counsel to assist you, which includes determining if there are steps you are required to take under the rules of the association and if “alternative dispute resolution” is necessary. The law pertaining to California homeowner associations (the Davis Stirling Act), for example, may require ADR with the association before you can bring a court action.
Q: During a windstorm, a large tree adjacent to our house fell, causing so much damage that we were required to move out. We live in a homeowner’s association and the tree was part of the common area. The association is dragging its feet on getting the repairs done and we are forced to live in temporary housing, which is not suitable. An arborist has told us the wind may have been a factor in the tree falling, but the tree itself was dangerous and should not have been there. Is the association liable?
T.R., Woodland Hills
A: Your association has a fundamental duty of due care to its homeowners. This includes maintenance of the common area. Safety of homeowners is an obvious and fundamental aspect of what the association is expected to protect. Thus, you may well have meritorious claims against the association for out-of-pocket losses, diminished quality of life, and physical — if not emotional — harm. As above, a determination has to be made as to what you are required to do under the rules of the association and if ADR is required before court action is brought.
Ron Sokol has been a practicing attorney for over 35 years, and has also served many times as a judge pro tem, mediator and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
Source: Orange County Register
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