Rules on tree trimming by owner

David G. Muller is a board certified condominium and planned development attorney for Becker & Poliakoff, PA, representing community organizations across Florida with offices in Naples, Fort Myers, and 10 other Florida cities. The firm focuses a significant portion of its practice on condominium and homeowner association law. Lawyer Müller answers your questions about the community association. Send questions to lawyer Müller by email to [email protected]

Q: I am a new owner of a home in a deed restricted community. Many of the lots, including mine, have large oak trees that sit between the back of the residence and the parish property line. The oaks are never pruned by the club. One oak in particular is on a shared property, but the huge branches stick out and hang over the roof of my house. I asked the president of my club to cut these branches. He refused to do anything and he told me that I cannot touch the trees or branches and that I have to “leave them alone”. I am very concerned about possible damage to my home from these trees and branches as hurricane season approaches. Can I cut the branches hanging from my property? JB

A: Yes. There are two theories that have been brought before courts in Florida to hold neighboring owners liable for damage caused by tree roots or branches extending beyond the property line, harassment and negligence.

In a 1984 ruling, a Florida appeals court found that while other jurisdictions have substantial powers to the contrary, “the landowner’s unquestionable right to cut off any intruding roots or twigs along the property line,” it precludes action for negligence.

As for harassment, the majority rule in this country that is followed in Florida is that the landowner is not liable to anyone outside the country for nuisance resulting from trees and natural vegetation growing on the land because of the Neighboring owners have the right to cut roots and branches back to the property line.

Applying this law to your facts gives you the right to cut the branches that extend on your property. That being said, your club has a duty to maintain common areas and it could be argued that if that duty is not met, you could make a claim. However, this argument has not been tested in court and contradicts a fairly well-established precedent outside the club environment.

Q: During the 2020 legislative session, were there any bills that affect community associations? DF

A: The only notable bill affecting community organizations that was passed during the 2020 Legislative Session that ended in mid-March is SB 1084. SB 1084 is an attempt to govern animal abuse through emotional support. The effective date of this bill is July 1, 2020. SB 1084 amends various Florida statutes to:

• A person who forged information or written records, or knowingly provides fraudulent information or written records in order to obtain an Emotional Support Animal (ESA), or otherwise knowingly and intentionally misrepresents himself or herself because he or she has a disability or a disability-related need after having an ESA, commits a second degree offense. In addition, a person convicted under this new law must do thirty (30) hours of community service.

• A health professional who provides information, including written records, demonstrating that an individual has a disability or what documents demonstrate an individual’s need for an ESA without personal knowledge of the individual’s disability will be disciplined .

• Defines an ESA as “an animal that does not require training to work, perform tasks, provide assistance, or provide therapeutic emotional support because it alleviates one or more identified symptoms or effects of a person’s disability. “

• Enables associations to refuse an appropriate housing request for an ESA if the requested animal poses a “direct threat to the safety or health of others” or poses a direct threat to physical damage to the property of others that cannot be mitigated or threatened by other reasonable precautions be eliminated. “

• Enables associations to request support information for ESA when a person’s disability is not readily apparent.

• Clarifies that information that can support an ESA request can include: a federal, state or local government agency identified a disability; Receiving benefits or services for the disabled from a federal, state, or local authority; Proof of entitlement to housing allowance or a housing voucher received due to a disability; Information from an alternative practitioner, a telehealth service provider or a similarly licensed or certified practitioner or provider who has a good reputation with the supervisory authority of his profession in another state, BUT only if this non-state practitioner has provided personal care or services for the Person on at least one occasion.

• The practitioner or provider of supporting information must have personal knowledge of the individual’s disability and act within the scope of his or her practice.

• If a person requests more than one ESA, they must provide supporting information for each animal.

• The association may require proof that each ESA is properly licensed and vaccinated.

• The association may not require individuals requesting an ESA to use a specific form and may not refuse an application just because an individual has failed to follow the association’s routine method of providing supporting information.

• An ESA registration of any kind, including an identity card, patch, vest, certificate, etc., alone is not sufficient to reliably demonstrate that an individual has a disability or a disability-related need ESA.

• Persons with ESAs are liable for damage caused by the ESA to the premises or to another person.

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