Condo Media - April 2020 - 16

Asked & Answered

Pine Nuts

How to Leave Tree Stress Behind
An owner has asked the board to remove
two trees that, the owner insists, are
unsightly, overgrown and potentially
dangerous. After examining the trees,
the board concluded they are not
dangerous and there is no need for the
association to incur the considerable
cost of removing them. Do we have to
take any additional steps, other than
informing the owner of our decision?

You might want to start by rethinking the board's
decision-making process. How do you know the tree
is healthy? If you're wrong and it turns out that the
tree is diseased and falls on this owner or anyone else,
the board will be sued for negligence, and you will
be hard-pressed to defend that action, according to
Richard Brooks, a partner in Marcus, Errico, Emmer
& Brooks, P.C. The board was on notice that the tree
posed a potential risk and failed to do anything about
it-the essence of a negligence claim.
The argument that board members looked at the
tree and "thought it looked fine," is unlikely to impress
a court, Brooks observes. He suggests that you have
an expert examine the tree. If the expert determines
that the tree is healthy and it turns out not to be, the
board will have a reasonable negligence defense (you
took steps to assess its condition) and a cause of action
against the expert who erred.
If your expert finds the tree healthy and the owner
isn't happy with that judgment, Brooks suggests that
you have the owner obtain a second opinion from
another arborist, at the owner's expense. If these two
experts disagree, you can ask them to select a third
expert to break the tie. The board and the owner can
agree to accept the majority view. This arbitration-like
process may reduce the risk that you will end up in
litigation over the issue.
People feel strongly about trees, Brooks notes,
and condominium owners who dislike a tree have
been known to take matters into their own hands and

CONDOMEDIA April 2020

remove it, adopting the "ask forgiveness not permission"
strategy. If you think this owner may be inclined toward
self-help, Brooks suggests, you should point out that this
approach rarely ends well for condominium owners.
He notes as an example, the owner of a restaurant
in a condominium office community, who wanted
a tree removed from the common area because the
birds it attracted soiled the picnic tables in front of his
business. When the board refused, he got a chainsaw
and cut it down himself. The board sued and won a
judgment against the owner for the cost of replacing
that mature tree-which was about $30,000, Brooks
recalls. Mentioning this example might discourage
your owner from buying a chainsaw, if he was considering doing so.
You might decide after consulting your expert that,
though the tree is healthy, you want to remove it for
other reasons-because the shade it creates impedes
the growth of grass or plants, for example. Before
you take that step, Brooks suggests, you should find
out how other owners feel about the tree. Some may
view it as an essential feature of the community and
feel as strongly about keeping it as the owner who approached you feels about removing it.
"You don't have to be bound by their views," Brooks
agrees. "But it's easy to ask what owners think. And why
infuriate half your residents if you don't have to?"

Condo Media - April 2020

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