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JoanG
(Maryland)

Posts:17

06/18/2008 10:01 AM
I am on the Board of the HOA of a 61-individual-home community in Baltimore County, Maryland. The HOA owns common areas in the community -- one plot is basically equivalent to an individual home lot that was not developed because there was the expectation that a road was going to be built there to connect our community with a new one proposed to be built behind us. We have successfully persuaded the developer of the new community to not build that road -- a major HOA victory! So now all we have to do with it at the moment is mow the lawn. The more complicated issue relates to the HOA-owned property that is also forest conservation easement, with all the restrictions associated with that. (BTW -- many of us who purchased the "premium" wooded lots are really angry that the builder's agents never told anyone what the implications of owning forest conservation land were -- namely that you can't do anything with it, except remove invasive species and have dying/dead trees removed after getting approval from the County. Any recourse for the builder’s negligence??) The reason for this posting is this: There is a lot of poison ivy and poison sumac in the forest conservation area. While we can legally remove that because it is considered invasive, it's a very expensive thing to do because the County restrictions limit how that removal is done in order that other species are not harmed. In addition, it would require constant maintenance to keep the poisonous stuff away. We got an estimate and we planned to do it behind one homeowner's property because his lawn abuts the forest conservation land and he is extremely allergic to the poisonous stuff -- to the point of having to go to the hospital -- and it is encroaching on his yard. And then we thought, wait! Are we opening a major "can of worms?" What if someone is allergic to ragweed, and the pollen is making them sick -- are we responsible to remove that? (My husband, an asthma sufferer can attest to the reality of this possibility.) There are only 4-5 homes that back onto the HOA owner forest conservation property, but if we do it for one person, do we then have to do it for all? Unfortunately one of those homes is owned by our one seriously difficult, complaining homeowner, so we anticipate an uproar if he were to discover that we had done it for one and not for him, even though he's never complained about poison ivy, etc. Any advice would be much appreciated. Thanks!!

EllenS1
(Florida)

Posts:350

06/18/2008 3:35 PM
If your docs are silent as to care of the forest area I would think it is up to the homeowner who has the allergy to pay the cost of removing these invasive plants. Surely the title examination would have shown this conservation area and the closing agent, either attorney or title company, should have explored this and informed the buyers. Unfortunately closers who close for builders rush these closings through. I'm interested in learning if your docs make the HOA responsible for taking care of this conservation area...I doubt it.

SusanW1
(Michigan)

Posts:2114

06/18/2008 4:48 PM
Seems you need to call in some experts for how to take care of this "white elephant" you have been given. Bet there are some university or local community college contacts you could connect with that could counsel your board. (We have the DEQ in Michigan, what is your State or County's environmental department called?) I know that some people are extremely allergic to poison ivy - even airborne. Just what the HOA's obligation to neighboring land is questionable. Pull in the experts.

KirkW1
(Texas)

Posts:1110

06/18/2008 7:39 PM
I think that if you do it for one, you will have to do it for all. While I feel for the person with severe allergies, I don't see it as an HOA responsibility. But perhaps you could create a buffer for all the owners backing onto the land. It couldn't hurt to request permission to put a five or six foot swath of grass between your houses and the forest. This would also help protect in case of a fire. As for the ability to go after the builder for not disclosing it, you may (and may not) have a case. If he told you it was forest conservation land, you probably have a hard road to prove negligence. If on the other hand he simply stated it was forested land you might have a case. He isn't required to give you a definition of conservation land.

CaroleJ
(Georgia)

Posts:32

06/18/2008 11:08 PM
I'm confused about why this is considered an owner's problem when Joan said the property in question is HOA owned. I bolded the relevant part below. I think she's asking if the HOA can do just the one property to relieve the man's allergy, or will that mean they have to do the other 3-4 properties that also abut the land. Posted By JoanG on 06/18/2008 10:01 AM The more complicated issue relates to the HOA-owned property that is also forest conservation easement, with all the restrictions associated with that. (BTW -- many of us who purchased the "premium" wooded lots are really angry that the builder's agents never told anyone what the implications of owning forest conservation land were -- namely that you can't do anything with it, except remove invasive species and have dying/dead trees removed after getting approval from the County. Any recourse for the builder’s negligence??) How about explaining to the difficult complainer what the undertaking entails and because of that, the project is based on medical necessity. Have the poison ivy sufferer ask his Doctor to certify the allergy in writing, which should then be enough to cover the Board's decision to do only the one property.

SusanW1
(Michigan)

Posts:2114

06/19/2008 9:58 AM
There is a lakes region conversation trust group in New Hampshire that may help you find a land conservation group in your state. Call 603-279-3246. Poison Ivy IS invasive, but unless you are gong to develop walking trails or garden walks on this land, I would simply ignore it, in fact, ignore the entire plat of land. The homeowner should have to provide in writing that something/anything happening on that land is affecting his health.(like loud parties, trees crashing down on his property, car racing, etc.) My favorite saying is: You Don't Have To Answer Every Barking Dog.

JoanG
(Maryland)

Posts:17

06/19/2008 6:38 PM
Thank you all for your responses. I'm not sure I'm feeling any clearer about how to resolve this issue, though. As CaroleJ said this is only about property that is HOA-owned. We (the HOA board) feel no responsibility to pay to have anything done on land that belongs to individual homeowners, including forest conservation land that is a part of their individually owned property. We do think we have a responsibility vis a vis the HOA owned land that abuts the individually owned lots. We have already paid to have 4 dead/dying trees removed that threatened homes. We first had to have someone from the Dept of Natural Resources approve that action. So the question is, considering that the poison ivy is a threat to a homeowner, do we take-on the on-going and costly job of keeping the stuff away from homeowners' yards. It seems comparable to what would happen if someone used a poisonous chemical on their lawn that impacted their neighbor's health. I think there is legal liability there. The only thing our covenants say about this is the following, "Any portion of the Common Areas or Lots designated and shown on any recorded subdivision plat of all or a portion of the Property as 'Forest Conservation Easement' shall remain in a natural, undisturbed state and will not be developed, or improvements erected thereupon by the Declarant...except those of a minor nature necessary for such intended use and permitted by applicable law." I was hoping to avoid paying legal fees to get a determination on this, but it looks like that's the only way to go. I could start by asking the Department of Natural Resources I suppose, but you get different answers to everything from them, depending on who's doing the answering. Susan -- I love your favorite saying. I just want to know which dogs do have to be answered to?? thanks again, Joan

KirkW1
(Texas)

Posts:1110

06/19/2008 7:49 PM
So I would like some clarification. The conservation land owned by the HOA doesn't just abut lots owned by homeowners. The conservation land actually runs up into the homeowner lots. Whatever the case, my experience is that poison ivy is a contact problem. Thus the mere presence of the plant on HOA land does not affect the homeowner unless the HO goes out to HOA land. And quite honestly, if there is no trail, then I don't think it would be proper to spend HOA funds fighting the stuff so the owners on the edge of the forest don't have to. The HOA is not obligated to remove poison ivy from their land to so the HO won't have it come onto his land. Now if all owners get some benefit (ie walking trail), then certainly there is reason to fight the ivy.

JoanG
(Maryland)

Posts:17

06/19/2008 8:01 PM
Here's the clarification: Unfortunately, there doesn't need to be a trail for a homeowner to come into contact with the poison ivy. (In fact there can't be a trail, either already existing or newly created, in the forest conservation area -- that's against the County rules.) The back edge of four different homeowners' lawns abut the HOA-owned forest conservation land. Poison ivy, being invasive and being a nasty vine that reaches over the edge of the lawn, makes it nearly impossible to avoid when a homeowner mows the lawn. In fact, if their dog runs along the edge of the woods -- where lots of this stuff is located -- the dog can bring it into their home and contaminate them that way. Geesh -- this is such a mess! I plan to speak with the HOA's lawyer tomorrow -- I don't know what else to do.

VickiL2
(Maryland)

Posts:2

06/20/2008 1:18 PM
Joan, I live in an HOA in MD with land that has similar restrictions to yours. I am anxious as to what your attorney says for my own benefit. Poison Ivy can be very bad for some, and reactions can be extreme. I would wonder the HOA's liability as the land owner if you have been notified of the problem, and did nothing. The HOA is basically this HO's neighbor. If my neighbor told me that he had a severe allergic reaction to poison ivy, and it was growing from my yard to his, I would take care of it. Just like I would take a tree down if it was encroaching on a neighbors property,or other problems that may be an issue for my neighbor. I would not want to end up in court over this. Reactions to poison ivy can be very severe, and different each time. Including airway obstruction and bacterial infection from open sores. So do not take poison ivy lightly. Does your county have any type of removal program available? Just a thought. Good luck!

KirkW1
(Texas)

Posts:1110

06/20/2008 1:48 PM
I remain a skeptic that the HOA should do anything in this case. The homeowner is responsible to keep it off his own property. And if his dog is the problem, then he is responsible to keep the dog out of the woods. If the reasoning is valid, then could I be held responsible for my Bermuda grass invading my neighbor's yard? (This is invasive here in Texas.) What if he happens to be allergic? Or could the HOA be held responsible for keeping seedling trees from sprouting on the HO's land?

VickiL2
(Maryland)

Posts:2

06/20/2008 2:15 PM
I don't know Kirk. I am skeptical too, but very curious as to what the attorney will say. I have not seen the yard or encroachment, and do not know how invasive the poison ivy is onto his property. If it can have an herbicide put on it at his property line, and maybe a little beyond , AND be in compliance with local codes (if this is wetland or such there are some issues here), I would just think that maintaining that would be better than a possible lawsuit. Whether or not the complaint would be found valid by the courts is mute, no suit is fun or pretty. But complete removal of poison ivy in a MD wooded area is impossible, and the ongoing maintenance of trying to keep all poison ivy gone would be too cumbersome and expensive. So I am thinking that a buffer as someone else suggested would be something to consider. And worth the compromise to keep things civil. And yes, if you were my neighbor, and I had bermuda grass that was obviously (obviously being the operative word) growing on to your property from mine, and it bothered you, I would make efforts to do what I could to try and keep it off of your property. Some things you can not always help, and complete removal, or eradication of some of these species is impossible, unfortunately! But a true good faith effort goes a long way to decrease anger. That is all I am saying.

JoanG
(Maryland)

Posts:17

06/20/2008 5:30 PM
Here's the gist of the conversation I had with our lawyer today: The body of law which may govern this has to do with “premises liability” – about a property owner’s duties to trespassers and/or neighbors. There is also the Law of Neighbors & Trees (sic?) which includes the opinion that a neighbor can cut back another neighbor’s growth that is encroaching on them at the property line. At the same time, it is not the responsibility of the neighbor from whose property the encroaching is originating to cut it back. (This is such complicated legalese!) I explained that we wanted to be able to do something to alleviate the situation for this homeowner -- he's not being difficult, he just asked for help -- but were concerned about the precedent it might set. He said that if the homeowner could claim – perhaps substantiated by a doctor’s note – that his condition constitutes a disability, then under the fair housing act he can request “reasonable accommodations.” This would allow us to do the work and address this one homeowner's needs, without requiring us to do it for everyone else whose property abuts HOA-owned forest conservation easement property. He also said that we could propose to the homeowner that he share the cost with the HOA since we are not required to do this work. Frankly, I'm still not sure how we should proceed. I like Kurt's idea: It couldn't hurt to request permission from the County to put a five or six foot (or even 3 foot) swath of grass between your houses and the forest, and I really appreciate what VickiL2 said about taking the issue of poison ivy seriously. I also think that the County should be assuming more responsibility about the whole thing. They're the ones who approved the building of homes with fairly small yards right up against this wooded area with all the risks they have proven to contain -- falling trees and noxious plants. Since building our subdivision the county has come to realize that these small islands of forest conservation in the midst of subdivisions don't really support the environment in the way intended: trees suddenly isolated by all the ones that used to stand with them and provide support and wind buffer combined with the impact of the construction process itself are dying and falling in droves. This has turned formerly forested areas into land parcels that are now becoming overrun with noxious plants and other invasives as the trees fall and the forest floor gets the sunlight that encourages the invasives' growth. I'm happy to share this info but don't think it's really made anything much clearer!!

KirkW1
(Texas)

Posts:1110

06/20/2008 5:52 PM
It isn't that I don't take it seriously. But you could have a real problem if the others start to be upset about what is being done to benefit a few (or one) homeowner. Honestly, the best method I can think of to stop the vine is to create a small zone from which you can easily eradicate it. And I think the best bet for all is for the four houses abutting the land to work on a united front against the ivy. Everyone will enjoy much better control if you work together. And if you contract it out, then you should realize some savings for having the larger area together. A grass zone would seem to be the best defense to me as then you can spray a broad leaf killer on the are regularly to kill anything that dares to try and cross the line.

KirkW1
(Texas)

Posts:1110

06/20/2008 6:03 PM
By the way, there seems to be some good information on control of poison ivy here: http://poisonivy.aesir.com/view/control.html Most of the people found that "brush-be-gone" was the most effective method of control.

JoanG
(Maryland)

Posts:17

06/20/2008 6:04 PM
Hey Kirk -- sorry for renaming you Kurt! I agree with your idea; the challenge is getting through the slowly turning wheels of the county government to get a decision... I'll keep you all posted. I'm surprised that a problem similar to this hasn't been posted on this forum before!Joan

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