Q&A: Is HOA Responsible for Removing Tree Roots?

Q. We own a townhouse style condo (one unit on each side, no unit above or below ours ). We have a wooden deck in the back our unit. Deck maintenance (i.e., painting, wood repair) is our responsibility. However there is a big tree 15 feet away from our deck and its roots have grown under the deck and caused the deck to rise so that the door from our unit to the deck will not open. It also appears that the HVAC compressor next to the deck is rising also. Is the association responsible for removal of the roots and restoring the deck to its proper level before the roots caused this problem? Any advice?

 —Worried About Our Wooden Deck

A. “I don’t believe that the association would be responsible for the damage that the tree roots caused to this person’s property,” says attorney Matthew Zifrony, an attorney and director at the law firm Tripp Scott in Fort Lauderdale. “For the most part, one is only responsible if/when they are negligent.  And the law says that you’re not negligent if the tree roots of a tree on your property damages another’s property. 

 “An analogy would be to damage that’s caused by a bursting water heater.  You’re not automatically responsible if your water heater bursts and damages your neighbor’s home.  You would only be responsible if you knew or should have known that the water heater could or would burst.  When it comes to tree roots, Florida courts have held that one can never know or should know that the roots of their tree will cause damage to another’s property.  That means that one (in this case, the association) shouldn’t be responsible if the roots from one of its trees actually cause damage.” 

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Comments

  • I live in a gated community governed by an HOA. In front of my house is a sidewalk that has been lifted by tree roots. Both the sidewalk and the tree are in the Common Area. The Association has cited me for not “repairing” sidewalk, pointing to a clause in the Covenants that holds the Association responsible for everything in the Common Area “except for maintaining sidewalk” where said sidewalk is adjacent to homeowner property. I have argued that the Covenants contain four relevant clauses, three of which either relieve me, or prohibit me, for making the demanded repairs. As to the fourth clause, the one they cite, I argue that it is a gross stretch to interpret the word “maintain” to mean “remove and replace” in addition to cutting out a tree root system. To my mind the key issue is the encroaching root system and a demand that the homeowner perform surgery on it. One clause protects wetland vegetation and specifically prohibits homeowners from damaging planting in Common Areas. Another clause limits homeowner responsibility for repairs in Common Areas only to damages caused by homeowner. The third clause says all Common Areas maintenance is responsibility of Association, except for sidewalk maintenance. To my mind, this would put tree root removal on Association. As I see it, I cannot perform the demanded “repair” without cutting out the tree roots. As I read these clauses, (a) I am not required to maintain tree roots, and (b) I am prohibited from damaging trees. I interpret “maintain” in the context of community sidewalks to mean things like picking up twigs and branches, clearing and sand build-up, and Even annually pressure-washing. But I don’t think it covers jackhammering up a sidewalk, cutting out a root system, and pouring new concrete. Your thoughts?