Question: We share a common block wall with a neighbor in our Gilbert subdivision. The neighbor’s tree roots are cracking this common block wall and are intruding into the backyard near our swimming pool. We have written our HOA community manager but we have had no response. Can we demand that our neighbor repair our common block wall and remove the tree?
Answer: You first should review the CC&Rs for your community. Although the CC&Rs probably state that the HOA has no obligation to get in the middle of a dispute between neighbors regarding common walls, you should have certain rights in the CC&RS regarding common walls, e.g., you and your neighbor have the joint obligation to maintain the common block wall, but if the damage to the common wall is due solely to your neighbor’s tree, your neighbor has the obligation to repair the common block wall.
Finally, if the tree roots are causing any damage in your backyard, e.g., displacing tile around your swimming pool, you have the right to sever the roots at the common block wall. Before severing the roots, however, you should contact an arborist to determine if the tree will die or will otherwise be significantly impaired.
Note: Arizona and the majority of the states require that you, and not your neighbor, pay for the cost of severing roots (and branches) from your neighbor’s tree that encroach on your property. Hawaii and a minority of the states have a more sensible rule that your neighbor has to reimburse you for any reasonable costs.