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Maverick
Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 5767
Experience:  20 years professional experience
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I have been informed that roots from a "tree" in my common

Customer Question

I have been informed that roots from a "tree" in my common area has broken a coommon area sewer pipe and the roots are from my common aera and I am responcible? for the total repair
the pipe is over 40 years old and with out any other evedence I have been told I need to pay for the repairs as the "tree" is in my common aera.
Am I legally responcible for the total amount or is the age of the sewer pipe and it's unknown condition piror to the root intrusion a factor?
I have read the CCR'S and "Damage by a member" Is the only thing I think they (asso)they have to claim their loss and My responcibility.
What are my options? and can they assign fault mearly by stating so?
Submitted: 2 months ago.
Category: Real Estate Law
Expert:  Barrister replied 2 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

Expert:  Barrister replied 2 months ago.

Who is telling you that it is your trees roots that are the cause of any damage? a HOA or a neighbor?

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Have they provided any proof that it is your tree that is the cause?

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Is the tree on your private property?

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thanks

Barrister

Customer: replied 2 months ago.
NO proof has been given other than the "video" (which i haven't seen) of the pipe shows roots and they claim are from My condos "common area"
The rep for the condo manitance has told me it is my tree? and My roots. so I need to pay $3600 to repair this pipe?
The condos are over 40 years old and It is quite possible the pipe was cracked or bro***** ***** ago and the roots just found it?
What is the legal "damage by member" clause in the CCR's I have read this and it states "to the extent permitted by california law" each mamber shal be "liable" for damage caused by his condo unit.
Expert:  Barrister replied 2 months ago.

Ok, if you can answer my question about whether the tree is on your private property, that would be great...

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You mention "common areas" which typically are areas that are owned by the Association for the use of all owners... So I don't quite understand your use of the term related to your specific condo area.

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Normally you would have your private property and then common areas that are owned by the Association for everyone's use (i.e. tennis courts, a pool, etc.)..

Customer: replied 2 months ago.
Are you a condominim attorney? All the property is an assoation is held "in common" Even my personal back yard.
Other than the "inside walls" the property is held "in common" so it's my back yard but subject to the assoation.
This is what the CCR's tell me, although it's MY patio it is held "in commom" by the asso.
Expert:  Barrister replied 2 months ago.

I apologize for the delay, I have to be off the site for a bit so I am going to opt out and open the question to other experts so you don't have to wait..

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Another expert should be along shortly to help.

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thanks

Barrister

Expert:  Maverick replied 2 months ago.

Welcome to Just Answer! My name is Maverick. Please give me a few minutes to review, analyze and/or research your inquiry and I will be back. Thank you for your patience.

Expert:  Maverick replied 2 months ago.

There is "common area" and then there is "exclusive use common area". Exclusive use common area, sometimes referred to as "restricted common area" or "limited common element," is defined as those common areas outside the owner's separate interest which are for the exclusive use of that owner. Maintenance responsibilities for exclusive use common areas are often assigned to owners but may vary from association to association depending on their governing documents.

Assuming that this tree is on your exclusive use common area, it is possible that you may be liable for some or all of the damage to the pipe. The way this is determined if this matter goes to court is through what is known as "a battle of the experts" using an expert regarding tree roots and/or the useful life of the pipe in question. Damages may be apportioned according to the depreciated value of the pipe.

That said, however, I would argue that trimming the tree roots was not your responsibility as the roots are on the association's property.

Under CA law, if roots encroach under adjacent property, the association can sever the roots if the roots are causing damage and then only if done reasonably. If the tree roots of an adjoining landowner do in fact cause damage and the association acts reasonably to sever the roots causing damage, the owner of the encroaching tree is liable for the actual out-of-pocket expenses incurred as a direct result of his tree's encroaching roots.

So, you are right to question whether this constitutes "damage by a member" as the duty to sever the roots appears to fall on the adjoining landowner which in this case appears to be the common areas of the association.

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