What to doif trees located on “common land” are causing damage to my townhouse?

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What to doif trees located on “common land” are causing damage to my townhouse?

I own a townhouse and we have “common areas” that our HOA maintains. I am an end unit and there were trees that the HOA removed in between my unit and my neighbors unit last year. I have recently noticed water entering my unit and pulled up the carpet to find tree roots growing through my wall and foundation. These roots are from the trees that were removed from the common area. Is my HOA responsible for this damage to my home?

Asked on January 9, 2012 under Real Estate Law, Georgia

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You would have a claim for negligence against the HOA and the tree removal company.  Negligence is the failure to exercise due care (that degree of care that in this case a reasonable tree remover would have exercised under the same or similar circumstances to prevent foreseeable harm).  If the HOA hired an outside company to do the work, it would be liable for negligent hiring.  If the HOA used its own employees to do the tree removal, as an employer, the HOA is liable for the negligence of its employees which occurred during the course and scope of their employment.

Prior to filing a lawsuit, it may be possible to settle the case with the insurance carriers for the HOA and tree removal company (assuming the tree removal was done by an outside company) separate from the HOA.   Your damages would be the cost of repairs to your townhouse.  If the case is settled with the insurance carriers for both HOA and tree removal company, NO lawsuit is filed.  If the case is NOT settled with either party, your lawsuit for negligence would name both the HOA and the tree removal company as defendants.  If the case is settled with the insurance carrier for one party, your lawsuit would only name the remaining party as a defendant.


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