Street trees threaten homeowners

Last December, the San Francisco Chronicle published an article about homeowners' resentment of San Francisco's "relinquishment program" under which the city since 2011 has been gradually transferring the responsibility to maintain "street trees" on public land to adjacent private property owners. ("Homeowners rally for plan to transfer tree ownership back to city," S.F Chronicle, Dec. 11, 2015.) San Francisco residents might count themselves lucky compared to residents in some other Bay Area communities. While the San Francisco program is incremental and involves notice to the homeowner, wholesale transfer of responsibility is an accomplished fact in many other California communities and there is no notice other than the standard constructive knowledge of the law attributed to all citizens.

The reality is that for most residents in these communities it would likely come as a surprise to learn that, for some time now, California municipalities have been adopting code provisions and policies that impose on private property owners all responsibility to adequately maintain trees and other vegetation on public property that borders their private property. With that transfer can come not only the maintenance expense - which can be significant for full-grown trees - but also potential liability if someone sustains a tree-related injury on public property and claims negligent maintenance as the cause.

The usual rationale for transfer statutes is that local government cannot afford to maintain the trees, even though such codes and ordinances are adopted by cities and towns that have the highest per capita income in California and the nation. In addition, municipalities do not typically relinquish regulatory authority with respect to tree maintenance when they transfer responsibility and liability. A municipality may direct what maintenance can be done, how it can be done, and who is authorized to do it. And a private property owner made responsible by code or ordinance for maintenance of adjacent street trees on public land may be required to obtain permits from the municipality and pay fees to do it.

The proposition that private property owners should be responsible for public land immediately adjacent their properties is not a new one. For nearly a century, Streets and Highway Code Section 5610 has required "owners of lots ... fronting on any portion of public street" to "maintain any sidewalk" in a safe condition. See Jordan v. City of Sacramento, 148 Cal. App. 4th 1487, 1490 (2007). This statute imposes a duty to repair the sidewalk regardless of the origin of any defect, but does not create tort liability for injury except where the owner created the defect or exercised full control of the sidewalk. A municipality can impose broader liability for sidewalk injuries but only by an ordinance with clear and unambiguous language.

There is no statewide street statute. Street tree ordinances vary from town to town and treat the subject of responsibility and liability with more or less detail in more or less clear language. For example, the city of Lafayette provision on street responsibility consists of two sentences in a lengthy "Tree Protection" ordinance. First, the ordinance provides that, "[e]xcept for trees planted by the City, it shall be the property owner's responsibility to maintain trees within the public right-of-way directly adjacent to private property." Lafayette Mun. Code Section 6-1708. There is no further guidance as to what that responsibility entails. The Lafayette ordinance also states, that "[n]othing in this chapter imposes liability upon the city or its officers or employees, or relieves the owner or occupant of private property from the duty to keep in safe condition a tree or other vegetation upon private property or upon a public right-of-way or easement adjacent to the private property." Id., Section 6-1713. This language, which appears in some form in a number of ordinances, disclaims the city's liability and reiterates the property owner's responsibility, but stops short of expressly transferring liability to a private property owner.

Emeryville Municipal Code Section 7-10.04 imposes responsibility on property owners "whose property is not zoned medium density residential (R-M) and whose lots or portions of lots abut, front or are adjacent to any street tree to maintain such street tree." The code section is vague and general as to what has to be done: "This duty shall include both routine and major maintenance of the street tree." The Emeryville statute also disclaims the city's liability while failing to expressly impose liability on private property owners. Id., Section 7-10.04(c). Assuming an owner or occupant even knows whether the property is zoned "R-M," there is no guidance as to what specific maintenance is necessary and no explicit provision that the owner may be liable for injury to persons or property resulting from the failure to do it.

Other ordinances are less ambiguous. In Fremont, all owners of "a lot with frontage along a public street must maintain the street trees and other landscaping growing along the frontage or in the street right-of-way adjacent to the lot, including in any park or parking strip between the property line and the street line." Fremont Mun. Code Section 12.30.200(a). The code then spells out the owner's minimum obligations with specificity, including ensuring no obstruction of street lights or street signs, clearing branches to the height 10 feet above the street, removing dead or broken limbs that overhang the streets, watering, fertilizing, pest control, and even replacing trees. Id., Se 12.30.200(b).

The Fremont code provision leaves no doubt that owners are on the hook for liability. Section 12.30.200(c) declares that an owner "owes a duty to members of the public" to maintain street trees in a safe condition. If an owner fails to do so, "and a person suffers damage or injury to person or property, the owner shall be liable to the person for the resulting damages and injuries." Id., Section 12.30.200(d). Lastly, Fremont can seek indemnity from a property owner for any damages it may have to pay on a judgment or in settlement of a claim of injury to persons or property as a result of an owner's failure to maintain a street tree as required by the code. Id., Section 12.30.200(e).

In a typical far-fetched premise, M. Night Shyamalan in "The Happening" has the trees in New York's Central Park begin to kill people by inducing suicidal thoughts. Nothing so drastic threatens property owners in California but the regulatory risk from trees on public land adjacent to private property is real and it is unlikely that the average homeowner is aware of it.

Steven Kimball is of counsel with DLA Piper LLP (U.S.). He can be reached at steven.kimball@dlapiper.com.