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When a landscaping project goes awry, sometimes it's better to dig it up from the roots

QUESTION: Over the years, the exterior of our HOA development, from the perimeter wall to the public curb, has deteriorated, looking dated and dilapidated. To increase our property values, the board embarked on an ambitious "beautification" project. This consisted of removing large old mature trees with large root systems that interfered with plumbing and were difficult and costly to maintain. In their place, young trees were planted and attached to a wooden frame on the association's perimeter wall. The process, called espaliering, trains the growth of the trunks and branches.

These trees are healthier and the branches are stronger, but there was an unintended consequence of the healthier tree limbs and the trellis they are attached to. The branches and the trellis mount act as a ladder, allowing outsiders to climb the wall and enter our secluded backyards. We've experienced a recent spate of burglaries that we think must be the result of this landscaping improvement.

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Now, many of us owners want the board to remove all the beautiful espaliered trees, since we'd rather have nothing than be sitting ducks for burglars. How do we convince the board to cut our losses and remove this new safety hazard?

ANSWER: Sometimes the best interest of the association requires accepting a short-term financial loss to prevent a long-term problem. Informing the board that the branches and trellis allow criminals to climb the wall and enter backyards should be enough for any reasonable board to spring into action, investigate and solve the problem.

Jim Alexander, a landscape consultant with Marina del Rey Garden Center, said it should not be surprising that installing espaliered trees makes it easier to scale a wall, since the landscape effect allows the trees to grow sturdy limbs that can act as footholds.

"The espaliered trees are doing exactly what they are supposed to do — they are designed to look like a candelabra," he said. "When they are used for their intended purpose, they are stunning. When they are creating problems, they must be removed."

The most successful boards use their common sense when dealing with situations like this, but many people have difficulty admitting failure and any stubborn individual who joins a board can be an obstacle for resolving problems.

For homeowners, there is no right way or best practice when it comes to dealing with a board and trying to convince its members that they made a wrong decision. Board directors are ultimately just your neighbors, so how would you convince them of something outside of the context of an HOA?

Do your best to build a coalition of other owners who share your feelings about what needs to be done. Gather proof that criminals are using the trellis to enter the property and that more crime has taken place, such as a police report or security video. Attend each board meeting and relay these concerns during the open forum.

Another way to help resolve the dispute is to offer solutions beyond simply removing the trellises and trees. One option would be to install security cameras or hire security to get to the root of the problem. Another possibility would be to develop an alternative landscaping solution, perhaps by replacing the trees with low-growing, non-invasive indigenous plants.

These ground and wall covers are dense and attractive yet use little water and require minimal maintenance. The Los Angeles Department of Water and Power has a variety of residential water conservation programs and plants that your board could consider. They are also available to discuss your situation and make suggestions. Visit www.ladwp.com and click on the link for "Water Wise Yard" under the "Go Green" tab for residential customers.

Ultimately, the board is meant to serve the association as a whole, so members typically focus on the position of the majority. If the board still won't listen, it should be forewarned that ignoring reports of criminal activity could violate the terms of the association's directors and officers indemnification insurance, which typically covers "negligent" acts by boards.

Sticking their heads in the sand and staying in utter denial mode could be viewed as an intentional act. That would mean if an owner were to sue the board over losses suffered in a burglary, any judgment could have to be paid out-of-pocket by board members.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 ornoexit@mindspring.com

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