Police Can Step In If Neighbor Harms Tree

Question: The community association where I live has some vague wording in the declaration of covenants, conditions and restrictions about protection of views.

Some original owners paid more for their lots because of a better view of the surrounding mountainous area; however, the declaration does not completely prohibit the planting of additional trees on any of the lots. It merely states that owners who want to add to their landscaping must notify the architectural control committee.

Several years ago we planted a tree that we keep trimmed to a height of 15 feet. Recently, we were informed that the association received a complaint from one of our neighbors about the tree. The association board declined to follow up on the neighbor’s complaint.

At the most recent board meeting, our neighbor made some verbal threats to remove the tree himself if the association would not take action. What can we do if our tree is removed or damaged by our neighbor?

Answer: Your situation is similar to many involving associations that have had trees and landscaping damaged or removed.

I recently spoke with a manager who reported that an owner had cut down several trees in the association’s common area. Owners who take matters into their own hands are subject to penalties, if you can identify the person who damages your property or the common area.

The fact that the neighbor stated his threat at a board meeting makes it obvious that he will be the prime suspect if something happens to your tree.

Richard P. Neuland, an attorney with the law firm of Neuland, Nordberg and Andrews in Rancho Santa Margarita, spoke about this problem at a recent Community Assns. Institute seminar, so I asked him to provide some legal advice.

“When a manager, member of the landscaping committee, board member or owner discovers that someone has removed or significantly modified a tree or trees located on your property, here is a tool that you can use,” Neuland said.

“Penal Code Section 602 prohibits the entry upon the property of another for the purpose of injuring or removing a tree.

“It also provides protection against property intrusion for many other purposes, including digging up plants, removing or damaging fences and signs,” so Neuland encourages reading the entire code section to understand all of its provisions.

“Before you experience any damage, you may want to investigate your insurance coverage for this type of loss. I would suggest taking pictures of the tree in its current condition. Include a person in the picture to show relative size or use measuring devices in the picture to show height and width. This evidence will be helpful if damage occurs.”

Neuland added when you want to use Penal Code Section 602:

1) Call the city police or the county sheriff. Remember, only the city or state can enforce a penal code provision.

2) Expect the police to try to deflect you. They may tell you, “It is a civil matter,” “There is nothing we can do” or “Call the association.” Do not let that deter you. Insist that they come out to observe the damaged property and file a written report. If you plan to file a property damage claim with your insurance company, most companies require a copy of the police report.

Neuland recommends that you call an arborist (before you call the police) to ask for an estimate of the value of the tree and then obtain a written estimate of the cost of replacement or restoration of a damaged tree to its original state.

Another purpose for the arborist’s visit to the property is to obtain advice on the care of a damaged tree and the length of time that it will take to regain its natural beauty. This information should be provided to the police.

“Not only will you be astounded at the value of the missing tree or the loss of value caused by the removal or butchering of the tree,” Neuland said, “but this information may energize the police to perform their duties on behalf of the owner or the association.”

Getting the police to enforce the penal code has another benefit. When they knock on the suspect’s door, he may divulge information to the police that he would not admit to anyone else. It will probably discourage any further damage to your property or the association’s common areas.

How to Hire Attorney as Association Advisor

Q: Our association does not have an attorney. One of our board members is insisting that we need to have legal advice on an architectural matter. One of the owners is an attorney, but he has declined to provide legal advice to the association because he specializes in another area of law. How should we select an attorney? Will we have to pay a monthly retainer fee?

A: Seek a law firm that has several community-association clients and ask for the names of some of the firm’s clients so that you can obtain references from board members.

If your association is professionally managed, the manager or management company personnel can provide the names of several attorneys.

Large associations sometimes have more than one attorney. For instance, an association might have a law firm that is handling construction defect litigation while another provides advice regarding rule enforcement and assessment delinquencies.

If your association employs a manager or other on-site personnel, the association needs an attorney who can provide advice about labor laws. Vendor contracts are another area that requires legal advice from time to time.

Interview several different attorneys. If you like a specific attorney, find out whether he or she will handle all of your work or delegate some or all of the day-to-day work to associates within the firm.

In the interviews, discuss the following:

1) The attorney’s specific areas of knowledge and length of experience.

2) His or her litigation experience.

3) The attorney’s experience with associations having similar architectural controls.

4) Some of your current problems or concerns.

5) Hourly rate and billing procedures.

Ask for references and find out about the attorney’s voluntary affiliation with nonprofit groups such as Community Assns. Institute and the California Assn. of Community Managers.

Do not expect free legal advice during the interviews. A good attorney will not offer glib answers to legal questions without having the opportunity to review your association’s governing documents.

After the interviews, verify the attorney’s membership or affiliation with the bar association and the organizations named previously.

Check the references that the attorney provides. Ask the references if the attorney returns phone calls within a reasonable length of time. Ask about the types of problems that the attorney has worked on for the client.

Do not select an attorney based on the cheapest hourly rate. Fees vary based on retainer fees, clerical fees and other considerations. Some attorneys offer a choice of retainer or hourly billing. One person from the board should be the contact person to monitor the billing statements. That individual has a duty to keep the other board members informed and he or she must be trusted to represent the entire board in its dealings with the attorney.

Send your questions to Jan Hickenbottom, Condo Q&A;, Private Mailbox 263, 4790 Irvine Blvd., #105, Irvine, CA 92620-1998.