BonnieE
(Illinois)
Posts:331
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| 08/20/2008 6:06 AM |
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Hi everyone!
I have another perplexing question to pose: who owns the tree?
If a tree is donated to the HOA and the Board accepts it, has it planted in the Common Elements by their landscaping company, (this tree was a “stick with roots” about 12” in length), and maintains the mulched area around it (adding new mulch, extended the size of the mulched area as tree grew). The tree is now close to 10 feet tall.
Who owns the tree? HOA or person who donated it?
Thanks,
Bonnie
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DonnaS
(Tennessee)
Posts:5671
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| 08/20/2008 6:10 AM |
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The HOA owns it as it is on common property. Because it is 10 feet tall, does that pose a problem? |
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SusanW1
(Michigan)
Posts:5202
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| 08/20/2008 6:11 AM |
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Is it a Memorial Tree, planted in someone's honor?
Doesn't matter anyway; possession is 9/10s - you said the HOA accepted it and has cared for it AND it is on HOA property.
Good lesson for a policy regarding "donations" to an HOA. Perhaps a "Release Form" ought to be developed.
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GeraldT4
Posts:1022
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| 08/20/2008 6:24 AM |
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| BonnieE - Who donated the tree? The HOA owns the Common Elements, because of that the tree as well. |
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 6:30 AM |
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Thanks for the quick responses!!
Donna – the height of the tree is not an issue. The tree is a burr oak and the planting location was selected by the landscaper taking into consideration eventual size of tree in relation to buildings, drainage, its expected “life”, etc.
Susan – no, it was not planted as a memorial. I donated the tree (I was on Board at time). These trees were being given away free on Arbor Day many years ago (there is a “campaign” for more trees and for those which are native species to this habitat – oak/savanna). Trees are expensive - this was a way to save the HOA the cost of a tree (I believe the landscaper planted it as a courtesy to the HOA). Plus we have pest problems with non native species (emerald ash borer, Japanese beetles) – the oak is resistant.
BTW, this came up as a question because I asked whether the tree was now large enough to have the lower branches trimmed - the lower branches are in the way of the landscapers doing their work - (we have a tree care contract in place for all of our trees). The Board responded that the HOA did not own the tree so it was not responsible for its care. They said it is my tree and therefore I am responsible for its care. Note that there is no additional cost to the HOA for this tree since the contract covers all of the trees.
A policy or release form is a good idea and I will pass it on to the board as a suggestion.
Thank you!
Bonnie
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 6:31 AM |
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| Thanks, Gerald. I think my previous response answers your question (?) -Bonnie |
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GeraldT4
Posts:1022
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| 08/20/2008 6:48 AM |
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| Was the HOA's response in writing? |
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 7:20 AM |
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Hi Gerald,
This was my question/request to the Board via the MC (via email) – cut & pasted below:
"And, last question - do burr oak trees need to be trimmed/pruned? [landscaping company] has trimed other trees in the past as part of their tree care program, but has not done anything to this tree...I do realize that tree trimming is done in the winter. I didn't know whether it had to be a certain size before trimming or they are not trimmed."
This is the response from Board via MC (email):
"I’ve been advised by the Board and landscaper both that this tree actually belongs to you. You had asked for approval to install it many years ago, which you received. ... The association has advised that, since it is your tree, they will not authorize any association expenditures to trimming or pruning this tree. It is your tree, you are free to prune any dead branches, or raise the lower branches. It is not an association tree that you a unit owner is prohibited from trimming/pruning/altering, etc."
I’m curious why you asked…thanks,
Bonnie
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MaryA1
Posts:0
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| 08/20/2008 7:26 AM |
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Bonnie,
If that's the boards attitude (misguided at best!) I would consider cutting the tree down. If the tree fell and caused damage or injured someone would the board hold you resp.? Moral to the story: think twice about trying to do a good deed for your HOA! IMO, this sends a very bad message to the community. |
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GeraldT4
Posts:1022
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| 08/20/2008 7:27 AM |
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| BonnieE - There's clearly a misunderstanding on ownership that needs to be reconciled. |
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 8:13 AM |
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Hi again,
Per Mary: “this sends a very bad message to the community.”
No kidding! :-)
Gerald – I agree, which was why I posted the question. I was interested in the opinions of others before making a response.
I think the tree belongs to the HOA since it was donated, but more importantly, the Board has authorized its care for many years. In my mind, this establishes that it is part of the Common Elements and therefore owned by the HOA.
Also, there is no written documentation of a request to plant the tree and approval given, establishing it is the my responsibility.
Besides, what is the alternative? I own the tree…then I own the roots…then I own the land it occupies? How can a HO own a part of the Common Elements? Or, is my “logic” skewed? Or, remembering some other posts, could this be construed as a “taking”? I’m really not serious here...just considering the "what ifs".
Thanks,
Bonnie
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GeraldT4
Posts:1022
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| 08/20/2008 8:16 AM |
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| BonnieE - What do your governing documents state regarding procedure for owner plantings or improvements on the common elements? Is the tree on your property? |
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MicheleD
(Kentucky)
Posts:4491
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| 08/20/2008 8:26 AM |
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I believe she has stated several times above that the tree was on common area.
If there is no record of the request to install it on common area property and the approval of same, is there any record of the actual donation?
I would let the PM know that the board and landscaper are mistaken. That it was a donation and not a "borrowing" of common area land to plant a "pet tree."
How many years ago are we talking?
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DonnaS
(Tennessee)
Posts:5671
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| 08/20/2008 8:32 AM |
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Bonnie,
I am getting mixed statements from you on where the tree actually is growing. Is it on common grounds or as you later stated, a common element?
"-I think the tree belongs to the HOA since it was donated, but more importantly, the Board has authorized its care for many years. In my mind, this establishes that it is ****(part of the Common Elements)** and therefore owned by the HOA.
That needs a better explaination for us. Is it on your actual property?
.
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GeraldT4
Posts:1022
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| 08/20/2008 8:52 AM |
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Bonnie's wrote "In my mind this establishes that it is part of the Common Elements".
She did not write, "I have verified according to my plat plan that the tree is not located on my property".
Big difference.
The question of where the tree actually is planted is relevant and needs follow-up response. |
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 8:57 AM |
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The tree is located on the legally defined Common Elements of the HOA. Not on the Limited Common Elements. I’m sorry for the confusion by referring to the Common Elements as the common grounds (out here, we refer to them as one and the same when talking about the landscaped areas including grassy areas, planting beds, wetlands, etc.).
We are townhouse-style condominiums. As such, none of the HOs individually own any property outside the boundaries of their dwelling units.
There is no written record of the donation, nor of what occurred. There was no request to plant a tree, per se. I came to the Board with the offer when I heard about the free trees; they thought was a good idea and agreed I should get one; I picked up tree; landscaper planted it.
Timing? Around 10 years ago? (how long does it take an ~12 inch “stick” to become a ~10 foot tree?
Hope this helps...thanks! |
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 8:58 AM |
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| Gerald - per the plat, the tree is not on my property. It is on the Common Elements. Thanks... |
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MicheleD
(Kentucky)
Posts:4491
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| 08/20/2008 9:17 AM |
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Posted By GeraldT4 on 08/20/2008 6:24 AM
BonnieE - Who donated the tree? The HOA owns the Common Elements, because of that the tree as well.
Are we getting into another argument on what the definition of is is?
You may be right that she is being vague and the tree may be on "her" property.
But I'm just taking her at her word that she is referring to the "common area" property as "common elements."
I may be wrong in that, which is why I said "I believe she stated . . "
She may have not really meant it was planted on the common area, just that by their (the board and the landscaper) planting it and maintaining it that it had become a "common element" in and of itself.
But I'm confused, then, by her comment here:
Posted by BonnieE on 8/20/2008 8:13:42 AM
Besides, what is the alternative? I own the tree…then I own the roots…then I own the land it occupies? How can a HO own a part of the Common Elements? Or, is my “logic” skewed? Or, remembering some other posts, could this be construed as a “taking”? I’m really not serious here...just considering the "what ifs".
Thanks,
Bonnie
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MicheleD
(Kentucky)
Posts:4491
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| 08/20/2008 9:19 AM |
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Thanks for clearing that up, Bonnie.
"Nevermind."
(Please disregard my previous comment." |
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GeraldT4
Posts:1022
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| 08/20/2008 9:39 AM |
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| MicheleD - Bonnie wrote "In my mind this establishes that it is part of the Common Elements". Stress on the words, "In my mind". YET you wrote "I believe she has stated several times above that the tree was on common area." Both Donna and myself sought clarification. Me because of the words, "In my mind". Additionally, just because the COA is maintaining the plant doesn't mean they should. In this case we now know that the tree is indeed on common property. Thanks to the fact that both Donna and myself sought clarification and Bonnie now provided it. It's now not just a matter of something being in Bonnie's mind, it's a matter of reality. |
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GeraldT4
Posts:1022
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| 08/20/2008 9:44 AM |
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| BonnieE - I believe a letter to the Board is in order. Provide the history and the reminder (as ridiculous as it needs to be made) that the tree is on the Common Elements, ownership of which is not any one individual owner. The maintenance of the common elements is the responsibility of the association. Don't touch the tree, eventually the association vendor will take care of it. |
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MicheleD
(Kentucky)
Posts:4491
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| 08/20/2008 9:44 AM |
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Thanks, dad.
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BonnieE
(Illinois)
Posts:331
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| 08/20/2008 10:04 AM |
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Thank you to ALL of you as you all have been a great help to me!
I will send a letter to the Board clarifying the situation: the history and so on. I will reference the Gov Docs re Common Elements, responsibility re landscaping plants.
I was not planning to do anything to the tree.
And, I’ll let you know the Board’s response.
Thanks, again, Bonnie
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DonnaS
(Tennessee)
Posts:5671
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| 08/20/2008 11:01 AM |
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Bonnie,
Just as a footnote, yes. all trees need to be trimmed, shaped or pruned. Especially the "sticks that we get as free ones from the Arbor Day giveaways. Lower branches make room for bigger and stronger upper branches. Your landscape guys should know how to trim them. |
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KirkW1
(Texas)
Posts:1665
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| 08/22/2008 12:21 PM |
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I would think the BOD would want to take ownership of the tree. If it is your tree, then you are free to do with it as you please. While that may seem convenient today, in another ten years it may not seem so good. I am sure the neighborhood reaction would not be good if you decide to cut it down today. Give it ten more years and they will really get upset.
But at any rate, I would make sure to keep a copy of what their final decision is. This way you can either prove it isn't your tree. Or prove it is and that you are free to do with it as you please. |
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BonnieE
(Illinois)
Posts:331
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| 08/22/2008 4:55 PM |
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Hi again,
Well, I have received a response from the Board. They state:
“…your concerns were relayed to the Board of Directors…Two members specifically remember how the tree came to be…that you would provide the tree and fencing, and [landscaper] would provide the mulch. Three members (the majority) state it has always been their understanding that this tree, therefore, belongs to you, just as when any unit owner wishes to put in plants of their choosing, they are responsible for maintenance.”
Obviously it is my word against that of two Board members as to how the tree came to be on the property. The 3rd board member mentioned in the response was not on the Board at that time and was not involved.
The facts are:
• I provided the tree.
• The Board authorized (paid) the landscaper to install the tree.
• The Board has paid the landscaper over the intervening years to care for the mulched area around/under the tree (the tree is separate from other trees, bushes) – including spreading new mulch several times, and extending the diameter of the mulched area to more than double its size as the tree has grown.
• The tree is only now possibly old/big enough to need trimming.
• Trimming the tree would not be an additional cost as there is a tree care contract in place for all of the trees.
Re fence: There had been no plan to install a fence around the tree. But once the rabbits moved into the neighborhood (we were a new development on farmland), they began munching the lower leaves of the tree. With Board permission, I installed the push-in garden fencing (they come in sections and are about a foot tall) for a summer.
Kirk – you make a good point re ownership. I still do not understand how I can legally own the tree, but if the Board is telling me I do….maybe I should leave it at that. But, I do not understand why the Board wouldn’t want this tree to belong to the HOA.
What if I were to move? Who would own the tree then?
Fortunately, burr oaks require minimal care as they grow quite well “in the wild”. Although, if I was to want to trim the lower branches, I wonder if I would need Board permission as they require permission for any changes made to the Common Elements. Another thought has come to mind…what if the Board should require I do something with or to the tree?
Any other thoughts would be welcomed. At this point I am not sure whether to continue to pursue this or not.
Thanks,
Bonnie
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MicheleD
(Kentucky)
Posts:4491
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| 08/22/2008 5:08 PM |
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Well, what if the tree is struck by lightening and falls on someone?
Or if some major limbs come off in a storm. . . and damage property. . .
Are YOU responsible for the damage or is the HOA?
I would check with an attorney and get his recommendation on how to make a disclaimer of ownership for the tree.
If you didn't "donate" it way back 10 years ago, then can you "donate" it now?
Do you place an advertisement in a public notice somewhere (the paper?) that you relinquish ALL CLAIMS OF OWNERSHIP for the tree, effective retroactively back to the date of installation?
I dunno.
Seems a really weird thing for the Board to dig their heels in on.
Not very professional, if you ask me.
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MicheleD
(Kentucky)
Posts:4491
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MicheleD
(Kentucky)
Posts:4491
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| 08/22/2008 5:11 PM |
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:rolleyes
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BonnieE
(Illinois)
Posts:331
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| 08/22/2008 6:12 PM |
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Michele – same here when I read their response. And, I agree. Except, if you lived here and knew this Board, then you might begin to see that this is not at all unusual for them to dig their heels in on this type of stuff.
And, you pose some good questions. As for looking into a disclaimer …yes, I will look into that, IF I own the tree. Maybe that is the question to ask an attorney – do I own the tree. On second thought, I think the Board should consult the HOA attorney on this. Another thought comes to mind – I can ask the insurance agent for the HOA as to who is liable if a kid climbs the tree and falls.
Thanks - Bonnie
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