A NEW ITEM FOR THE INVESTOR’S PRE BUY CHECKLIST – TREE ROOTS UNDER THE SIDEWALK

You may have seen residential neighborhoods with sidewalks that have some portions that look as if they were lifted by tree roots. Sometimes these lifted sections can be tripping hazards. But that is the city’s problem, right? Not necessarily, according to a recent case.

If you invest in residential property in areas in Washington that have sidewalks, then you may want to know about a recent court case that held the property owner liable for injuries suffered by a pedestrian in a tripping accident on the sidewalk. The facts are that during the Fifties, the owners purchased a residence in West Seattle and lived in the home for fifty years. Some time before 1990 they planted three birch trees on the property next to the sidewalk.

Over the years the roots of these trees grew beneath the sidewalk and according to an expert at the trial, lifted a section of the sidewalk about an inch, although the tripping hazard was “not conspicuous.” In 2003, a pedestrian tripped on the lifted sidewalk section and broke her wrist. She sued the city and the property owners. The property owners asked the court to dismiss the case against them on the basis that they did not have any duty to the pedestrian.

The court discussed the responsibility of the landowner in terms of whether the tree roots were a natural or an artificial condition. The court concluded that when the owner plants a tree on the property, that tree is an “artificial condition,” and the owner has a duty to “restrain” the tree from injuring a pedestrian. The city still has the responsibility to maintain the sidewalk but that is not enough to shield the property owner from damages in such a case. The court refused to dismiss the case against the property owners.

For the investor in residential property, what does this mean? First, it means you should have a good first hand inspection of the property you intend to buy if it is in an area where there are sidewalks. You should look around to see if there are trees on the property. Trees can be counted on to send their roots out, and they may be under the sidewalk. Second, if the inspection discloses that there are trees on the property whose roots may be under the sidewalk, it will be important to know whether the trees were there before the sidewalk. If the trees were planted by the existing homeowner or a predecessor rather than having been in place when the house was built, then there is the likelihood that the property owner will be responsible for “restraining” the roots from lifting the sidewalk and creating a tripping hazard. If the trees were planted by the homeowner or a successor it will then be necessary to find out before purchasing, what the cost of “restraining” the roots is likely to be. If you can establish with certainty that the trees were in place before the house was built, then likely you do not need to be concerned about potential liability from tree roots lifting the sidewalk because such trees are classified as a “natural condition.” The court made it clear that where an artificial condition is involved, the property owner has the duty to restrain the tree roots, and a reasonable assumption is that this duty would extend to subsequent purchasers of the property, even if they were not the ones who created the artificial condition.

This is another case of “let the buyer beware.”

The foregoing is intended for education and should not be considered legal advice.

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