Q&A. Can an association be responsible for damage to owner-maintained driveways and walkways caused by tree roots located on the owner’s lot but maintained by the association as part of its common maintenance responsibilities?

A: The association may be liable for damage caused to an owner’s property by the roots of the tree under a theory of negligence. However, the association would not normally be liable under a claim of negligence unless it was on notice that the tree roots were causing damage and thereafter the association failed to timely remedy the problem. Negligence occurs when an association, through its board of directors, knows or should know there is a risk of property damage and fails to take reasonable action to prevent such damage. To prevail on a negligence claim, the owner would have to prove the tree roots caused damage to his or her property and the association was negligent in maintaining its roots. The relevant inquiry, therefore, is whether the association as acted reasonably in maintaining the trees and corresponding roots. An association that has landscaping responsibilities should consult a licensed landscape contractor and make regular inspections of the association maintained trees, and when appropriate consult with an arborist. If the association regularly adheres to the recommendations of its licensed landscape contractor and arborist with regard to maintenance and upkeep of the trees and roots it will be difficult to argue the association was negligent in its maintenance. – Jackie E. Quinn, Esq.