In a recent column, you wrote that it was highly unlikely that an association would be held liable for damage caused by its inability to cut tree roots.
For the past five years, my association, in the annual budget, has been collecting funds allocated to ârepairing the sidewalksâ. Sidewalk repairs are necessary and caused by the incursion of roots of live oaks aged 35 to 40 years along the ditch in front of our houses. In some areas, sidewalks are raised several inches, creating the risk of tripping and falling. HOA has taken care of sidewalk repairs to get the best price from a licensed and insured contractor and to ensure that any root pruning will be done in a professional manner.
Let us now turn to the problem of “negligence / liability”. Although the association raised these funds for sidewalk repairs over the years, for some reason the HOA did not do any repairs or prune the roots, and they kept the funds as surplus. As a result, some sidewalks are in a deplorable state.
Who is responsible for any injuries sustained by a pedestrian when tripping and falling on these damaged sidewalks? The homeowner who paid for sidewalk repairs and root pruning through their annual appraisals, or the HOA who raised those funds but didn’t make the repairs?
My previous article regarding root pruning was about whether an association would be responsible for the cost of damage caused by root growth. I was of the opinion that as far as I know it is not part of ordinary tree maintenance to cut roots – and sometimes the roots damage sidewalks, pipes, pavers, etc. So, for example, if the roots of a tree association grows and damages your driveway, I don’t think an association would be responsible for fixing your driveway, as the damage was not caused by carelessness on the part of the driveway. ‘association.
The question you are asking is different. You tell me that live oak roots have damaged the sidewalks in front of your houses, which is extremely common and generally cannot be avoided. You also tell me that the association collects money for the repair of sidewalks and you suggest that the association is responsible for these repairs, but that it has not undertaken these repairs.
The first question to be answered is who is really responsible for maintaining these sidewalks. The monetary part of the question does not matter. Is the maintenance of the sidewalks the responsibility of the repair of the association, in accordance with the declaration of commitments? Or, are lot owners obligated to repair sidewalks? This is the first and essential question.
Suppose, for the sake of argument, that the association is responsible for the repair and maintenance of sidewalks. If the association knows that the sidewalks are in poor condition, it does not carry out the necessary repairs and the damaged sidewalk causes the damage; the person who was injured has a reasonable argument that the association’s negligent failure to meet its maintenance responsibility caused its injury, and that the association is responsible (obviously there would be all kinds of defenses and counter-arguments, including that the careless person walking on a visibly damaged sidewalk without doing due diligence, but that’s the gist of the argument).
If, on the contrary, lot owners are responsible for the upkeep of sidewalks, it creates a more complicated problem. You say that the association raised money and took on this repair responsibility, although it did not actually perform any repairs and despite in this scenario the lot owners are properly responsible for the repairs. I think the owner of the lot would be responsible here, as these are the people who (arguably) negligently neglected to maintain the sidewalk; but also, the association may have bought itself some responsibility by claiming to take responsibility for repairing the sidewalks – the landowner could argue that he relied on the association’s promise in a detrimental way and that the association should therefore compensate him for any damage.
I will say that, personally, if as a landlord I was responsible for maintaining a property near my home, and if that property was in poor condition and presented a safety hazard, I would do the repair. even if my HOA had claimed that it was going to do it, or was the only entity authorized to do so, unless the HOA may have agreed to sign a binding indemnity agreement, promising to defend me and compensate me in case I am sued. But, the fact that the money for the repairs is paid by all the owners does not confer any liability on those owners. The analysis is simply first, who is responsible for the repairs, and second, whether that entity or person negligently failed to make the repairs, resulting in an injury.
Ryan Poliakoff, partner at Backer Aboud Poliakoff & Foelster, LLP, is a certified specialist in condominium law and planned development consulting. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods â The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to [email protected]. Please be sure to include your location.