Tree Removal and Tear-Out Costs

By Michael J. Gelfand, Esq. / Published June 2022

City Left with Ax to Grind after Losing Tree Removal Dispute 

     A new decision likely to disrupt Florida community associations’ efforts to encourage and preserve green spaces will also undermine reliance on municipal and county codes, pushing communities to add more regulations. The first reported written appellate application of a new state law demonstrated how the legislature allowed a simple letter to allow trees to be cut down without any stated rational basis.

     In a decision of state-wide application, the facts as recited in Vickery v. City of Pensacola, 47 Fla. L. Weekly D468 (Fla. 1st DCA, February 16, 2022), reflect that after the City of Pensacola denied the Vickerys’ request for a permit to remove an old oak tree, the Vickerys regrouped and relied on a recently adopted Florida statute addressing the removal of dangerous trees. 

     Section 163.045 of the Florida Statutes (2019) authorizes a residential property owner to remove trees from their property without interference from local government if the owner obtains documentation from a certified International Society of Arboriculture (ISA) arborist or a Florida licensed landscape architect indicating that the tree presents a danger to persons or property. 

Not allowing the tree to go down without at a fight, the City of Pensacola sought an injunction to save the tree. The city asserted that the Vickerys’ arborist’s conclusions were insufficient, and the statute was ambiguously written. 

     After a victory at the trial court level for the city and despite a lengthy dissent from an oak tree supporter on the bench, the First District Court of Appeal reversed the trial court’s decision and dissolved the injunction. Applying a now frequently repeated rule, the Court reading the statute found that the text, while broad, was not ambiguous. The appellate court took care to remind the city that any local law that conflicts with state laws are invalid. 

     Does this mean that Florida community association members are free to chop down any tree on their property as long as an ISA-certified arborist gives them the go ahead? This will primarily depend on the community’s covenants. Most association covenants that limit cutting trees would still retain their effectiveness, for now. If a community relies on what they thought were enforceable municipal ordinances, they will have a surprise. Those communities without restriction will want to rethink their reliance on codes and ordinances, especially as a tree removed pursuant to the statute likely will not have to be replaced! 

     There are some exceptions to the statute’s application. Statutory mangrove protection continues. Also, condominium common elements and homeowners association common areas are unlikely to be impacted by the statute. 

     This decision is another clarion call to community associations to review whether they are relying on their own covenants or relying on laws or codes. Especially as the Florida legislature is increasing its efforts to pre-empt, or restrain, local government and community associations from enforcing restrictions that many thought reasonable, if there is a desire to regulate, now is the time to amend restrictions—before the next legislative session!

Tear-out Costs Tear Holes in Insurer’s Pockets: Ambiguous Limit of Liability Clause to Blame 

     It pays to read carefully, especially insurance policies before a loss! In a favorable decision for Florida homeowners and other community associations, two Florida homeowners were awarded four times an insurance policy’s “capped amount” for covered damages due to the insurer’s ambiguous policy wording. 

     The decision issued by a Florida appellate court, Security First Insurance Co. v. Vasquez, 47 Fla. L. Weekly D487 (Fla. 5th DCA, February 18, 2022), addressed an individual residence but could just as easily have been condominium, cooperative, or homeowners association property. The court reported that the Vasquezes suffered damage to their property due to an overflow of water from the plumbing system caused by failed cast iron pipes. Security First, their insurer, agreed that the loss was covered under the “Limited Water Damage Endorsement” in the policy but attempted to cap coverage at $10,000 pursuant to the Limit of Liability clause. The Vasquezes disagreed with the insurer’s interpretation of the clause, arguing that they were owed an additional $40,000 for the cost to tear out and replace the part of the concrete slab necessary to gain access to the corroded pipes. 

     Where did this disagreement come from? It was the focus on what was the property damaged by the loss. While the Vasquezes and Security First agreed that the Limited Water Damage Endorsement provided coverage for water damage covered property and tear-out costs, they disagreed on whether the Limit of Liability clause also applied to tear-out costs for property not damaged by the water. The clause reads, “the limit of liability for all damage to covered property provided by this endorsement is $10,000 per loss.” The Vasquezes argued that the concrete slab should not be considered damaged property since it suffered no damage from the water overflow and only needed to be cut out and replaced to get to the damaged pipe. 

     The appellate court agreed with the homeowners, determining that the way the clause was written it could be interpreted either way. Because Security First drew up the contract, the ambiguity would go against the insurer and for the Vasquezes. 

     How does this decision apply to Florida community associations? Associations and homeowners should review their current insurance policies carefully to determine whether included limit of liability clauses are similarly worded. If so, this victory for the Vasquezes could prove a victory for homeowners and associations should a comparable situation arise. If not, associations and homeowners should plan carefully to include funds for expensive incidental repairs like tear-outs in their budgets. Note that by the time of policy renewal, insurers likely will seek to change the policy language to their favor! 

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, homeowners association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or (561) 655-6224.