PUNITIVE DAMAGES, Part 2
In exercising their authority, did the board rush to judgment by prematurely removing a healthy tree and sticking homeowner Jim with a $6,800 bill?
Storyline characters: Jim and Bob (not their real names)
It looks like Jim did everything wrong. He failed to communicate his concern to the proper people, the association. He (actually, his landscaping contractor) trespassed on association property; he did so with the intent to prune trees lying just beyond Jim's property line; he did so without obtaining permission; and, to top it off, he pruned the mammoth tree, resulting, according to the board, in the "destruction" of association property. On its face, Jim would appear to be guilty on all counts. Admittedly, Jim made some mistakes along the way, but the central question is whether Jim's actions facilitated the destruction of association property.
Addressing an old issue
Anyone reading this might wrongly assume that this all happened out of the blue, with Jim waking up on one August day in 2009 and reaching for a machete in one hand and a chain saw in the other intent on doing some serious pruning in the back yard of his neighbor. Actually, the tree issue has a rather long history, going back to 2001 when Jim purchased his home. Jim had secured a promise from then Del Webb sales manager Jim Bond to control the growth and height of those trees along the perimeter wall between the single family homes to the south and the lower elevated Vacation Villas to the north that were used by the developer for marketing purposes. At some point, the ownership and use of those villas changed while the association through the Del Webb Management Company and later RMI continued to maintain the landscaping. At some point, homeowner Jim's verbal understanding about the height control of those trees went by the wayside.
The tree issue raised its head again in 2003 when Jim wrote to Pulte about his concerns. Based on Pulte's response, it would seem that someone in charge was directed to contact Jim about his concerns. Whether anyone did is unclear. This same tree issue was the subject of SCA board action in the summer of 2005, when, on behalf of Jim, then vice president David Berman communicated with Del Webb Management over the apparent failure of their landscaping department to control the growth and height of the trees behind Jim's home. Later that same year, Jim's attorney attempted to communicate Jim's tree concerns to his neighbor, mistakenly using an incorrect address and party to do so. In part, that letter alluded to the presence of tall trees that overhang Jim's property, pointing out that the size of the trees encourages a large number of birds to perch in the trees and then drop feces onto Jim's property. Continuing, he stated that the birds have damaged Jim's back lawn and have destroyed his new lawn furniture by their droppings.
It would seem that despite Jim's efforts, the tree issue did not get attended to in a mutually agreeable manner. Either no one on the association's end was sufficiently interested to address the issue, or someone had an interest in permitting that tree to grow. Meanwhile, the tree kept growing.
Was Jim or his contractor guilty of trespassing?
Ok, the tree issue was an old, even festering issue, most likely ignored by the association. But clearly Jim's contractor was obviously trespassing on association property when he did the deed, right. Maybe yes, maybe no. While it's true that the tree in question was located on association property, it does not necessarily follow that one's presence on that property constitutes trespassing. Technically, a trespass is entry onto another's property without permission. But seemingly unanswered is the question of who has or needs such permission in the case of common element property. Do Sun City Anthem homeowners, or their agents, have an implied right to venture onto common element property without permission? That's unclear. As I view the matter, the only implied condition of going onto association property is that one does not cause damage to something that requires repair or replacement in the process.
A check of the Villa Neighborhood governing document, their CC&Rs, will find no reference to who can or who can not be present on common element property owned by the association. In other words, obtaining the owner's permission to be on common element property, the opposite of trespassing, does not seem to be a Sun City Anthem homeowner requirement of the Neighborhood CC&Rs. For those not familiar, there are two sets of governing documents, one for each of the Neighborhoods, referred to as a Supplemental Declaration, and one for the Sun City Anthem Association.
What about Article III of the Neighborhood CC&Rs?
Indeed, what about Article III? Article III defines what is meant by the Limited Common Area within a Villa Neighborhood. It states that the common element real property and improvements provided by the developer are "for the exclusive use and enjoyment of Owners within said Neighborhood." The phrase "exclusive use and enjoyment" is a commonly used phrase that typically grants certain use rights, in our case, to owners within the Neighborhood. However, Article III does not set forth or define the purposes for which the common elements may be used, or alternatively and more importantly, it does not set forth the purposes that may be restricted or prohibited. Without further clarification, the intent of the developer in drafting this article is unclear.
On its face, one might infer from this language that no one other than an owner has any right to be on Villa common element property. But is that what Article III means? I think it means something quite different. Each of the four Villa Neighborhoods were created for the use and enjoyment of those living there. Within a given Neighborhood, the owners actually have a shared or common interest to use common element property, wherever it may exist in the Neighborhood. So, what does "exclusive" use and enjoyment mean? I believe that means that I as a non-owner of a Villa cannot use common element property in a Villa Neighborhood for any number of purposes, such as having a picnic, holding a social event, or having a Club or non-club meeting, etc. In the absence of the developer giving additional meaning to these terms, it is difficult for one to draw any conclusions or know what was intended.
Was Jim or his contractor guilty of pruning on association property?
Those same CC&R documents are silent on the matter of pruning on association property. While the CC&Rs are clear on the issue of the association maintaining the common element landscaping, the CC&Rs are virtually silent on what may be done by others. For example, in the only section that speaks to the issue of landscaping on Villa property is Section 4.2, Maintenance of Lot Landscaping and Equipment.
What about the following that appears in the last sentence of Sec. 4.2?
"Owners of Lots shall not alter such landscaping or equipment and shall not interfere with the Association's landscaping activities."
That's interesting but not too helpful. What does "alter" mean? The term is undefined and is not mentioned again. Does "alter" mean that lot owners are prohibited from pruning? That seems unlikely. Using the commonly understood meaning of the word "alter," that term refers to "change." In that context, the word "alter" appears to mean that lot owners shall not change the landscaping design. For example, the lot owner would appear to be prohibited from planting a tree in place of a bush, or from planting a bush in place of a tree. However, the CC&Rs do not address, one way or the other, whether a lot owner is prohibited from augmenting the landscaping activities of the association within an established landscape design. If there were such an intent, the governing documents would have made that intent clear. Therefore, the governing documents must be read as not prohibiting pruning as a homeowner activity. Admittedly, Villa homeowners have a disincentive to prune since they are already paying for that service through their special assessments that apply only to Villa homeowners.
Was Jim's contractor guilty of destruction of association property?
Despite Jim's efforts, some that were misdirected, the impression given is that no one in control of the community's landscaping activities were concerned enough to address Jim's concerns. Matters kept getting worse. While that neglect alone may not be reason enough to justify Jim's actions, the apparent repeated failure of the association to properly address this issue must be taken into consideration in evaluating fault and a remedy.
The tree's size became a health and property hazard for Jim. The trespassing charge against Jim has not been sufficiently defined by the governing documents to support a conclusion that Jim was guilty of trespassing when his contractor entered association property to prune. While securing permission might have been preferred or prudent on Jim's part, the governing documents appear not to make that a standing or enforceable requirement. Moreover, there is nothing in the governing documents to prohibit one from engaging in pruning activities on association property, whether that be Jim or another. So, what's left?
There is, however, one charge against Jim that just might have some merit. That charge, of course, is whether Jim's activities resulted in the "destruction" of a tree, requiring its replacement as ordered by the board. The board's justification for their decision is simple and direct. It was based on the recommendation of their "landscaping experts." As anyone knows, there are experts and then there are experts. In this case, no knows whether those experts even exist. Admittedly, if the board can sustain their claim that Jim's activities resulted in the destruction of the tree, they might have a good case. But here we are not dealing with the long ago tree chopper, who actually went about destroying trees. However, if Jim's activities contributed only to a diminishing of the tree's size, shape and shade protecting attributes, that's a far cry from the association's charge against Jim of actual "destruction" of a tree.
Perhaps the board is unfamiliar with what the term "destroy" means. The term has a variety of meanings, including to reduce to useless fragments, form, or remains; or to injure beyond repair or renewal. The association would likely want to hang its hat on the last definition, to injure beyond renewal, suggesting that renewal of the heavily pruned tree was not possible. If so, the board has a real problem in attempting to prove that the pruned tree was not viable as discussed below.
Do Trees Recover from Heavy Pruning?
Yes, trees do recover from heavy pruning. Suffice it to say heavily pruned trees have the ability to recover and grow back. Might such trees look ugly while their branches are re-establishing themselves? Most definitely.
The Board and Jim's Day in Sun City's Court
Does the association have a scintilla of evidence to establish that the tree in question was in fact "destroyed," as claimed by the association. Of course not, or they would have presented that evidence at the hearing that occurred on the 19th of November.
As the hearing date rolled around, the board's president Jack Troia had already made up his mind about Jim's guilt. Jim had already been indicted, charged with destruction of association property. All that was left was to get Jim on the record admitting to his actions. That would not prove a problem for Jack, who rolled over Jim, and for that matter the other board members as well, as any adept prosecutor or judge might do. Jim's explanations would be routinely ignored as confusing or irrelevant. After all, Jack, and likely others, had already made up their minds. The guilty outcome was a foregone conclusion. The hearing was merely a formality to get it on the record. Jim would be approaching the end of the line. There would be no further appeal.
But the board had a real credibility problem. In order for the board to make its case against Jim, they would have to wait until the following spring, when the pruned tree would have failed to demonstrate any sign of life. According to Jim, it was his impression at the hearing that was exactly what the board was proposing to do, namely, wait until spring before any decision would be made. At that time, the tree destruction charge against Jim would have been proven one way or the other, namely that the heavily pruned tree was dead or alive and growing. The outcome of the case against Jim would have been resolved once and for all.
But something obviously interfered with that possible spring outcome. Seemingly, the board was touched by the prospect of reality taking over. The realization that the pruned tree would not be alive and sprouting branches by spring was so unlikely that the board was forced to reconsider the option of waiting until spring. They needed to move in a different direction if they were going to stick it to Jim. If they waited until spring, the board would be faced with prospect that they would have to drop their "destruction" charge against Jim as well as the opportunity to recover their $6,800 replacement cost for planting a new tree, apparently something they could ill afford to do.
The Board Takes Action
Rather than waiting for spring and the inevitable re-growth of the pruned tree's branches, the board forges ahead with their plan to plant a new tree immediately, this winter. In the process doing so, the board destroys any evidence that might have exonerated Jim of the alleged crime of destruction of association property. By extracting the pruned tree when they did in January, the board would be able to falsely claim that Jim's actions had resulted in the destruction of association property. That would be the only way for the board to pursue its false claim of "destruction" and recover $6,800 for the costs incurred in extracting the pruned tree and planting a new one. Considering their fiduciary responsibilities, do you believe that the board proceed correctly, or was it preferable for the board to let Jim swing in the wind?
The board lacked any real evidence that Jim had actually destroyed the tree. As a result, the board subsequently wrote to Jim advising that their decision to extract the tree and replace it with a new tree was based on the recommendations of "landscaping experts." As to who those experts are and their credentials to evaluate whether a tree has been "destroyed" is unknown.
Actually, there was some evidence to the contrary, namely, that the tree was at least growing at the time the association told their contractor to remove the heavily pruned tree. That evidence was the presence of new branches sprouting from the base of the tree. That's a normal growth pattern in the case of a heavily pruned tree. But that growth matters little. As most understand, the real evidence of growth would have emerged in the spring, if only the board had allowed that event to take place. That was not on their agenda.
At the direction of the board, RMI's Community Association Manager Caren Carrero would notify "Jim" of the hearing's results, now guilty of causing damaged to a tree, while also demanding $6,800 for reimbursing the association for their costs incurred in extracting the pruned tree and planting a new tree. A copy of Carrero's letter of 4 January 2010 to "Jim" may be viewed here.
How Does One Know Those Upper Branches Will Eventually Develop?
One should understand that the upper tree trunks of a heavily pruned tree will typically grow new branches by doing appropriate research, by consulting with experts, and by observation.
While there are many examples available, we are fortunate we have a striking example right here in Sun City Anthem. Here are two pictures taken of a different tree from the one pruned by Jim's contractor, located at a home just off of Scotts Valley. The one on the left shows the results of heavy pruning. The one on the right, taken by me, shows the same tree two years later, seemingly flourishing.
Conclusions and Liability
Well, the board wanted their pound of flesh for Jim's alleged failings, namely a guilty verdict and $6,800 for Valley Crest's work in extracting a healthy pruned tree and planting a new tree. While Jim's hearing was in November, the Valley Crest bid for the work that was performed in January was actually dated the 22nd of September, less than a month after Jim's contractor pruned the tree. Did the board know the outcome well in advance before Jim?
It seems likely that there is plenty of blame to go around, not the least of which is the failure of the association to manage the growth of trees on their property. Had that been taken care of, it is likely that Jim would not now be caught up in this mess and a bill for $6,800. While Jim should have proceeded differently, is that sufficient justification for the association's efforts to collect almost $7,000 from Jim? Jim's only crime would appear to have been his contractor's overpruning on association owned property. In the absence of any credible evidence that Jim's actions resulted in the destruction of that tree, there is little basis to conclude that Jim is liable to the association for their decision to extract the tree and replace it with a new tree. The association's own actions in replacing the tree this winter and not waiting for spring places the association in the awkward and unfortunate position of destroying the evidence the board claimed that Jim caused.
As I have said before, if the board wanted to cater to and appease Bob for the presence of an ugly looking tree awaiting new growth with a new well rounded Shamal Ash tree, that's their decision separate and apart from their unproven claim that Jim's actions had resulted in the destruction of the tree that was subsequently extracted. While I believe that Jim feels partially responsible for what had occurred, the board's actions in this matter are not above reproach for their own failures and actions in this matter. I would hope that some mutually agreeable resolution is possible.
Ron Johnson, 27 January 2010