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Subject: Dead tree letter
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Author Messages
LanceP
(Ohio)

Posts:3


10/20/2009 9:49 AM  
I have been given the responsibility (I'm HOA president) for writing up a demand letter to notify a neighbor that a dead tree on their property is a threat to our association's property.

We have been advised that by sending a registered demand letter will place liability on them should any damage occur from the tree falling on our property. This happened last winter when another tree fell during a strong storm and damaged association property. The association had to pay for the cleanup and repair.

Does anybody have a sample demand letter for a situation similar to this or have any advice on how to proceed?

Thank you.

~Lance
TracieS
(Colorado)

Posts:460


10/20/2009 10:15 AM  
I don't have a sample demand letter handy, but I can tell you that as our HOA pres, I don't let it get that far (tree damaging anything).

Sending a demand letter will put them on notice that something on their property is their responsibility, and if it falls down and damages other property, that's their responsibility as well.

I do it a bit differently...since our CCRs allow some control over what can grow in a back yard. I say that it's impacting HOA property (HOA fencing, garage roof, unit trim, unit roof, etc), and that it needs to be removed by Such date. If it is not removed, so that it does not impact HOA property, then the HOA will bring in a tree removal person and bill the cost of removal to the unit owner.

What do your CCRs say about it?
LanceP
(Ohio)

Posts:3


10/20/2009 11:22 AM  
I probably wasn't very clear before, but the dead tree is on property that is not part of the HOA. It's located close enough though that if it does fall it can damage HOA property.
TracieS
(Colorado)

Posts:460


10/20/2009 11:28 AM  
I heard what you're saying.

I'm saying that MY CCRs allow our HOA to require owners to trim trees/remove trees ON THEIR OWN PRIVATE PROPERTY if the trees are in danger of damaging HOA property. If they won't trim/remove, the HOA will, then will bill the owner. These are trees that are growing in owners' backyards...completely private property.

Do your CCRs allow the HOA to protect its property from damage by things happening on an owner's PRIVATE property? Look in your documents, I'll bet it's there.

Then, you won't have to wait until the tree falls down due to weather, when it will cause a LOT more damage.

Also, if the tree is DEAD, and not dying...I wonder if you could just push this issue out to the city/county/muni... Might be a code issue.
DJ1
(Ontario)

Posts:798


10/20/2009 11:33 AM  
Tracie, I can see how ccr's apply to HOA property but how the heck do they carry any jurisdiction on non-HOA? If I was the private land owner I'd tell you where to go if you tried stepping on my property to try an do any cutting. Anything that may hang over onto your HOA property is fair game for the HOA to trim but beyond that, you've got me stumped..er pun intended.
TracieS
(Colorado)

Posts:460


10/20/2009 11:40 AM  
I'm not sure I understand your question...

Are you asking how the HOA can cut trees down in the backyards of properties within the HOA? Maybe i have the terminology wrong.

These are Townhomes...with fenced in back yards... Essentially *private* property, but still under HOA jurisdiction, according to our CCRs.

I guess if that's your question...well, it's what we do. Legal? I'm not sure. No one's ever had a problem before.

I do have a similar problem with an apartment complex that owns property that sits next to us. They've built a huge fence, and they neglect everything ON THEIR PROPERTY that is on our side of their big fence. We can't tread with non-HOA as we do with HOA. That's going to require my HOA to slowly start to assume the care/maintenance of that strip of land without assuming the liability/property taxes.

I do know you're in a different circumstance, and I'd probably be right there with you if I were in your situation, but our owners are all part of our HOA, and our CCRs allow the association to take action on things growing in people's backyards that could harm HOA property. We allow NO PLANTING OF TREES...and all opportunistic trees (that grow without being planted) must be removed.

For us, it's that simple.
AnnaD2
(Florida)

Posts:935


10/20/2009 11:40 AM  
I agree DJ. We have the same situation here. We are a small condo complex with private homes behind us. One homeowner's tree hangs way over on our property (on OUR) side of HIS fence. We do have every right to trim what hangs over our property. But we don't, because the tree hangs over nothing....just a bunch of grass.

The winds from a hurricane, in 2005, caused part of that big tree to break off and fall on our property. Guess who had to clean it up? US. I just about broke my back.
DonnaS
(Tennessee)

Posts:5671


10/20/2009 12:52 PM  

Lance,

I have to agree here with DJ. You have no control of property that is not within the HOA. You DO have the right to trim off anything hanging into your HOA airspace. The tree is dead and it will fall someday. Send a letter but the "DEMAND" part is scarey. How about a nice letter and take your chances that they might just be nice back. (That's why you have insurance)
GlenL
(Ohio)

Posts:4885


10/20/2009 1:38 PM  
Tracie, the tree the OP is talking about is not on HOA property but on a neighboring property which the HOA has no control over.

"Of all the things I've lost, I miss my mind the most." - Mark Twain
GlenL
(Ohio)

Posts:4885


10/20/2009 1:38 PM  
Lance if you don't want to pay for the HOA attorney to write the letter which I strongly suggest you do, be very, very careful in what you say. As Donna suggests write a polite business letter noticing the tree and the potential for damage and ask them to remove it. Send it certified return receipt, regular mail and ask the Post Office for proof of mailing which you will need if the tree falls. I would also write a letter to the city/county noticing the tree problem and ask if there is anything that can be done, at a minimum when they answer you it will give you additional proof that you were trying to get it removed before it falls.

"Of all the things I've lost, I miss my mind the most." - Mark Twain
MaryA1


Posts:0


10/20/2009 2:04 PM  
Glen,

You may have hit on the best course of action. However, instead of writing a letter to the city/co; perhaps a phone call to code enforcement will do.

Whether or not the property owner has a letter from the HOA asking that the tree be removed; if it were to fall and damage HOA property, I believe it would be his legal obligation to pay for the damages. BTW, I can't help but wonder what might be damaged. Is it close to buildings, homes -- what???
DeeS1
(Michigan)

Posts:223


10/20/2009 3:48 PM  
Lance:

Is the owner of the tree part of your community or another. I'm under the impression he lives in a different community.

We had a similar situation to this in our community, however, the tree was on common element and the homeowner wanted it removed by the association.

At any rate, if the owner is in your community, you obviously have more rights as others have said. If they are part of your HOA, you can generally require its removal for both aestic or safety reasons. Many bylaws, as another poster said, we let you go on to the property to remedy the situation.

If the homeowner is not part of your community, all you can do is send him a registered letter (I haven't looked into it, but maybe it would be encouragement to openly copy his insurance company as well), otherwise, the city might be able to help you or you'll need to get a court order. I'm fairly certain you have no rights to cut down someone else's tree unless they have given the the authority to by the nature of living in your deed restricted community.
GlenL
(Ohio)

Posts:4885


10/20/2009 4:10 PM  
Posted By MaryA1 on 10/20/2009 2:04 PM
Glen,

You may have hit on the best course of action. However, instead of writing a letter to the city/co; perhaps a phone call to code enforcement will do.



Mary while we've been conditioned to "reach out and touch someone" it's hard to prove what was said in a conversation; whereas a letter documents a paper trail.

"Of all the things I've lost, I miss my mind the most." - Mark Twain
MaryA1


Posts:0


10/20/2009 6:22 PM  
Glen,

Is documentation really needed? If the tree falls and damages any part of the HOA property wouldn't the property owner be liable to make repairs?
GlenL
(Ohio)

Posts:4885


10/20/2009 9:36 PM  
Mary in a perfect world common sense would say of course they would be but this is 2009 where a person who assaults someone and gets injured by that person defending themselves can then sue for damages and win, where burglars who get injured breaking into homes sue and win. Remember Sea's post of 10/16/09 where her unit was damaged by a flood from an upstairs unit and that unit's insurance carrier was denying the claim? The OP stated in his post that the HOA had a similar occurrence where the HOA had to pay so for me the longer the paper trail showing they tried to mitigate the potential damage the better.

"Of all the things I've lost, I miss my mind the most." - Mark Twain
MicheleD
(Kentucky)

Posts:4491


10/21/2009 8:14 AM  
Dee, and others, the OP has stated that the tree is on property that is not part of the HOA:

"I probably wasn't very clear before, but the dead tree is on property that is not part of the HOA. It's located close enough though that if it does fall it can damage HOA property. "

So it would be on property that abuts the HOA, but is out of its jurisdiction.


MaryA1


Posts:0


10/21/2009 9:02 AM  
Michele,

Very true and that means the HOA cannot take any action against the h/o to remove the tree. However, they can ask them to remove it b/4 it falls and causes damage to HOA property. But, I'm still waiting to hear exactly how the tree can damage HOA property. I like to think that doesn't mean that by falling over it might put a hole in the ground of the common area! But, exactly "what" might be damaged -- a building, a house, a wall?????
MicheleD
(Kentucky)

Posts:4491


10/21/2009 9:37 AM  
Most likely a fence or a wall, I would guess.

Unless it's really that close to a home or, if this is a condo, a condo unit.

But all that can be done is the paper trail asking that it be taken care of.

It may not have to come down, it may just need prudent trimming.

But there really is nothing that can be done if the owner just ignores the request.

Zoning enforcement of the local municipality MIGHT be able to cite them for it, but that all depends on what condition the tree really is in and whether zoning covers that sort of thing.
DJ1
(Ontario)

Posts:798


10/21/2009 9:42 AM  
- risk of damage to fence, wall, or how about PERSON!

We have park trails with some pretty scary old trees that have dropped HUGE limbs right onto the trail below...fortunately no one was walking below at the time or they might be flattened like the wicked witch in the Wizard of Oz!
LanceP
(Ohio)

Posts:3


10/21/2009 2:53 PM  
Thanks everyone for your helpful responses. The risk of damage is mostly to other trees, and if conditions just right, to a cluster mailbox and fence; and as DJ1 pointed out, anyone who just happens to be picking up their mail at the time.

As GlenL and others suggested, I will try a polite business letter to the tree's owner followed by a letter to the city. One or both are likely to be ignored but at least there will be documentation when it's needed.

Thanks again.
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