We’ve had a number of large monsoons tear through the Valley this summer. While we love some rain, unfortunately, many of the monsoons cause extensive damages with their rain, wind and lightening. In the days following a monsoon, I usually receive many calls and questions about who is responsible for the damages caused by the monsoon to different areas throughout a community.
One of the most common scenarios that I receive questions about is when a tree that is located on common area property falls onto a neighboring Lot or home owned by an individual homeowner. The Association typically wants to know who should be responsible for the damages the tree causes.
In general terms, an association’s governing documents (typically the CC&Rs) will address the maintenance responsibilities of the association and the homeowners, respectively. All else being equal, the association is responsible for maintenance as set forth in the CC&Rs; and, likewise, the Owners are responsible for maintenance as set forth in the CC&Rs. Typically the CC&Rs will include a provision about maintenance responsibilities being shifted (from the Association to the Owner, or vice versa) in certain circumstances, for instance, if an owner’s willful or negligent acts are the cause of the need for maintenance.
In regards to the situation of a tree falling and causing damage to a Lot or home, in general if the damages were a result of the Association’s failure to maintain the tree, then the Association would be responsible for the damages. However, if the damages were unrelated to the Association’s failure to maintain the tree, then maintenance responsibilities are not shifted. As such, if a tree falls as a result of a monsoon, it is my opinion that the responsibility for the damages would fall on whoever is responsible for that area under the CC&Rs. In this case, the owner of the Lot or home would be responsible for the damages to the Lot or home.
It is always a good idea for both associations and homeowners to check in on their insurance policies to be sure the community will be ready when the next storm hits. The Association should check in with its insurance company to see if there is coverage for extensive storm damage.
Please contact our firm for advice if your Association has storm damage and/or flooding after the next monsoon. Our firm will help the Board by talking through the Association’s maintenance responsibilities and insurance coverage, in order to help the Board make the best decisions.