PUNITIVE DAMAGES, Part 1
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)
Looking out Jim's window, all he could see were his neighbor's trees, especially that mammoth tree looming skyward in this picture's background and only partially seen in this photo that Jim took just before he asked his landscape company to prune the tree. Although Jim's house sits some distance above the elevation of Bob's house, that tree is even taller than Jim's house, making that tree about 50 or so feet in height.
We should all know by now that homeowners are not necessarily entitled to any particular view, even though they may have paid a premium to the developer for their view lot. And developer promises are just that, words that carry little meaning. But what do we know about the corollary to that? Are homeowners entitled to the beauty and shade that a tree may afford, especially when that tree is not located on their own property? Here we will explore the possible errant and abusive power of the association against the admittedly misplaced will of a homeowner (Jim) who took pruning matters into his own hands.
While homeowners are not entitled to any given view, may a homeowner prune their neighbor’s landscaping? The simple answer appears to be, “Yes.” But that “Yes” typically comes with certain restrictions. For example, does the landscaping pose some type of threat to your property? Or, does the landscaping interfere in some material way with your property, such as, it’s creeping over the property line? Complicating these issues is the question of whether the landscaping plan should override a neighbor’s concerns. After all, trees have a natural growth pattern, which can easily extend over a neighbor's property line. Another possible issue, notwithstanding the owner’s property rights, is whether community practices should be recognized over a homeowner's objections to landscaping growth that extends over one's property line? May one merely hack away at one side of a tree for no other reason than the tree happened to grow over the property line?
While all of these issues may be interesting, they are hypothetical. So, let’s get down to the issue at hand. Jim lives in a single family home that backs up to a Villa homeowner, who we call Bob. In an unusual turn of events, the property between the two homes does not belong to either homeowner but is common element property that is owned and maintained by the association. Unlike most Villa situations where Villa homes are positioned back to back, this particular situation occurs where a single family residence with a perimeter wall and iron fence backs up to a Villa unit that borders on common element property that is situated between the two homes, as pictured below with the homes of Bob and Jim highlighted.
Just over Jim's property line were some offending trees needing pruning, at least as Jim viewed the situation. As the above picture shows, the tree was simply huge, so huge that a portion of the tree eventually hanged over Jim's property, causing bird droppings from the birds that filled the tree and spoiled part of the yard. It appeared that the tree had been allowed to grow without being trimmed or pruned. Note in the photo to the left those light-green dots (trees) along the perimeter wall between the Villas to the north and the single family lots to the south. Contrast the relative size of those almost obscure dots with the size of the "TREE" between Bob's and Jim's homes taken a few years back.
Since Bob's Villa unit faces northwest, this huge tree provided Bob's house with significant daytime shade. However, Bob has no responsibility to maintain the landscaping where the tree was growing in the rear of their backyard. That maintenance responsibility rested solely with the association. Did the association and their contractor abandoned that responsibility in the case of this particular TREE, and if so, why?
Jim Takes Action
So, what did Jim do? Wrongly believing that he had a right to prune the tree on association property, Jim tasked his landscaping company to prune the trees in his neighbor's backyard. That pruning took place on the 26th of August 2009. From all appearances, it was evident that the overgrown tree had not been regularly pruned by the association’s landscaping contractor, perhaps Valley Crest. What transpired at the time of Jim's pruning efforts is not entirely clear. However, there was no mistaking the outcome.
That mammoth tree was heavily pruned, cut way back, reduced to bare bark, essentially branchless for all practical purposes with no leaves in sight. Jim claims that that result was not his intention, only that the tree be moderately pruned back. Jim says he is truly sorry that the landscaping workers had gone too far in the pruning process, most likely in an effort to save them the time it would have taken to do a more suitable and picturesque pruning job. In any event, the ugly looking outcome of heavy pruning could not be easily overlooked, as seen in this internet-obtained example of how a heavily pruned tree might look.
Board Destroys Evidence before Anyone Could Know What Will Happen
Left undetermined was whether Jim's heavily pruned tree on association property would survive. Subsequent events will establish that that issue never crossed the board's mind. Or, if it did, the board was apparently desperately eager to destroy the evidence in the winter, least that heavily pruned tree might prove to be healthy. The board needed to act before the heavily pruned tree began to sprout branches in the spring. If the heavily pruned tree was proven to be healthy by spring, the board would have had little cause to replace a growing tree, let alone to give Jim a bill for $6,800 to remove an already growing tree and replace it with a new one. Had the board actually waited until spring and then decided to put in a new tree, who would pay? Surely, not Jim as long as the heavily pruned tree was seen flourishing.
As a result, the board needed a scapegoat, someone to pay for encroaching on association property without permission. While the board would allege that Jim destroyed association property, there was simply no evidence to support that conclusion. No, the board wanted to send a message, to punish Jim for his unsuitable act of pruning trees on association property. This would help to deter others from doing so and recover costs as well. But primarily, the board's response was designed to satisfy Bob, who had lost his precious shade cover and to assuage his understandable concerns over having to look at an ugly tree until those new branches started growing. But, mind you, that decision was a political decision by the board for which the association should bear the cost, and not Jim because of his alleged destruction of a tree on association property. Jim destroyed nothing. In deliberately choosing to destroy the evidence as it did in the midst of winter, perhaps the board is the real guilty party in this sordid mess?
Everyone agrees that Jim lacked explicit permission to enter association property for the purpose of pruning trees. While that’s not in dispute, it's unclear whether Jim's contractor actually needed permission to be on association property for Jim's intended purpose of pruning. While the association may view this trespass differently, the governing documents just might clarify or muddle this issue even further.
Coming Up: The Aftermath
Yes, there would be a hearing. But that hearing would be little more than a kangaroo court type of hearing that amounted to nothing more than an officially sanctioned lynching of Jim before the assembled homeowners, based, as it turns out, on trumped-up charges that lacked any basis for what seemed to have been the broad's well orchestrated and predetermined outcome that was presided over by president Jack Troia.
Stay alert for the dramatic conclusion soon coming in Part 2.
Ron Johnson 24 January 2010