Hazardous Tree on Homeowners Property

A property homeowner within an HOA has a large, completely dead tree contained within the boundaries of his property. It is in his back yard. The tree is approximately 45ft tall, with a 15ft. circumfrence at the base. It is well capable of crossing property lines when it falls, causing damage to any of 3 adjacent properties. The lots in this community are 1/4 to 1/3 acres.

The tree owner has been asked to remove the tree by two adjacent property owners by certified mail. This has been going on for over 4 years and the tree owner, thus far, refuses to remove the hazardous tree. The tree owner's response to the HOA is that he carries homeowners insurance which would pay for any damages when it falls.

In the interest of safety, can the HOA remove the tree and place a lien against the tree owners deed? Also, if a homeowner is notified by certified mail of a hazard on his property, and still fails to remediate the hazard, isn't homeowner's insurance void?

Thanks for your response. Years ago, I spoke to a county councilman (I believe), who at the time indicated there were no county provisions to cover this situation. Generally, it seems that hazardous trees a huge bug-a-boo. Unfortunately, at this point, I know way too much about them.

The HOA Declaration is as follows:

"Each owner shall keep each Lot owned by him, and improvements therein or thereon, in good order and repair and free of debris, including, but not limited to, the seeding, watering and mowing of all lawns, the pruning and cutting of all trees and shrubery ... all in a manner and with such frequency as is consistent with good property management."

My question now is, does a dead tree that was original to the bare building lot, and, that the owner did not plant, fall under the HOA maintenence guidelines as written? From what I've read, once you "purchase" a property, HOA or not, you are liable for everything contained within your property.

The current argument for not taking this tree down is that it is located the back yard, "supposedly" not visible from the street and in a wooded section of the property. This baffles me. Whether it is visible from the street isn't relevent to the safety issue. These aren't dense woods. There is not one inch of bark left on this large tree.

Initially, the tree owner denied ownership of the tree, either by arguing the tree was on an adjacent property owners, or, later, said that it was on the property line. Neither is true.

This really isn't a unsightlyness(sp) issue, but, rather a safety issue. The treeowner is gambling on the tree to stay up. But, if it does fall and cause damage, is happy to let his insurance pay for the cost.

Which is my next question. Aside from requesting the name of the insurance carrier from the tree owner, is there a way to obtain the insurance information by public record? Thanks very much.

We had a very similar situation in our community. A couple of points to consider.

1. The VAST majority of insurance policies have a "dead tree" clause. When/if the adjuster comes out to review the situation, they will NOT cover the incident if the tree is dead. This would be further likely if the HOs sent a certified letter acknowledging the fact.

2. Most municipalities have adopted a CODE OF ORDINANCES that requires property owners to maintain there property in a safe manner. Talk to your zoning and/or enforcement department. If you file a complaint, they may be required to follow up on it.

3. Check your CCRs ... the only recourse the HOA might have for the tree is on appearance grounds. You board is likely not charged with providing for the "safety" of the community. You may be able to require this HO to remove the tree because it is unsightly, but not because it is a safety hazard ... you would then probably need to enforce this for other dead trees in the community regardless of size/safely too.

4. I would shy away from going on to his property and cutting it down even if you CCRs give you the right. The process for recovering the money will be a long road and your whole community will be out the money for a awhile. We had a 60 ft cherry tree that cost $1500 just to cut. Chipping, haul away, stump removal etc were 100s extra.

5. As far as boundary issues, we have only had this come up on questions if the tree was on Common Area or HO property, but if the location is contested, we have person who is eventually determined to own the tree pay for the survey ... this deters HOs for frivolously claiming it's not on their property. We use a clause in our CCRs that let us charge HOs individually for a service that only benefits specific units and not the entire community.

6. I am not a lawyer, but as far as the HOA is concerned I would let this play out between the HOs. Obviously, you would want to help the HOs with who to call and what to do, but I wouldn't interject the HOA. I would think it unlikely that the HOA has a responsibility for the safety hazard presented between to other parties except for maybe the fact that you should enforce removal ecstatically ... think of a pool. Is the HOA responsible if someone is injured in a property owner's personal pool?

Since there is a safety issue as well, not just a financial burden, I would encourage the HOs to work with the local government to require the removal.

"Debris (pronounced /ˈdeɪ.briː/, /dɛˈbriː/) is a word used to describe the remains of something that has been otherwise destroyed. The singular form of debris is debris."

Laura,

IMO, the HOA would only get involved if the tree can be seen from the street, or, if it's a view lot, only then would they have access to inspect the back of the property. If the tree cannot be seen the BOD would have no way of knowing whether it was dead or not as I don't believe they have a right to come onto a member's property for the purpose of inspection to ensure they are in compliance with the CCRs. If that is the case then I would say it's an issue between the prop owner and his neighbors. On the other hand, if the tree can be seen from the street, then the declaration provision you posted would apply. Your CCRs may also have a provision giving the board the authority to perform the required maint at the expense of the prop owner. If the board felt the need to do this I strongly recommend notifying the prop owner of their intent including the date and time when the action will take place and by whom.

Glen is so right. Frequently the City can take care of a problem, trees or whatever, much quicker and less costly than going any other route.

Mary,

Some specific covenants may require an issue to visible from the street, others may not. Even so, access to the property itself isn't necessary as I'm sure the adjacent neighbours could provide any access thru their property for evidence.

Sometimes looking for a specific covenant is a mistake if there is one that is more general that could also address the issue.

ie. here are some examples of CCR's here that could be used if one wanted to get creative... ,

"Utility or drainage easements....No structure, landscaping...shall be placed, erected or maintained upon any area designated as a public utility easement that may damage or interfere with the installation and maintenance of utilities or that may change the direction of flow...."

Any wires in the area?

"Diseases and Insects: No Owner shall permit anything or condition to exist upon property that could induce, breed or harbor infectious plant diseases or noxious insects."

"In the event that any common fence or wall is damaged or destroyed through the act of an Owner, it shall be the obligation of such Owner to promptly rebuild and repair the common fence or wall without cost to the other Owner(s)".

He may have insurance but he could be on the hook for the other(s) fence etc.

It is just stupid not to address the dead tree but you may have the ability to convince him thru the HOA and not all issues have to be visible from the street to fix.

Thanks for all replies.

The HOA has been corresponding with both HOs. The question of ownership was never brought up *until* the tree owner realized the adjacent HO pursued this with the HOA after repeated attempts by two adjacent HOs, imploring the tree owner to maintain his property and remove the completely dead tree.

Once the tree owner realized the adj prop owner was intent on getting this tree down, he retaliated and complained about a topped tree, essentially a tall "stump" on the adj prop owners which had been topped by former owners. A 12 ft stump in the adjacent back yard versus a 45 ft dead tree etc. Both the stump and the tree were located in the back yards, within existing trees. The "stump" was never a concern with the other adjacent property owners who had sent certified letters to the owner of the 45 ft dead tree.

The owner of the 45 ft dead tree is a former HOA board member. It is my understanding he is known for disputes with other property owners to the point of phsyical violence.

Via the management company, the HOA sent the same letter to both HOs in 2006. Stating that the adjacent property had to take down their "stump." The tree owner had to take down their 45 ft dead tree. If either HO did not comply, the HOA would "contract for the tree removal, and assess the individual HO of each for the corresponding amount." Question, hasn't the HOA already involved themselves by sending this letter and stating the terms and repurcusstions?

Ajacent home owner says ok, I'll play this game and comply, removes their 15 ft stump. Even though, previously there was never an issue or complaint from any other HO or the HOA. And, the "stump" would never have crossed property lines.

3 1/2 years have passed, and the tree owner has yet to remove the 45 ft dead tree. He clearly dosen't want to bear the expense. Instead hoping that it either never falls or relying on his homeowner's insurance.

In a HOA meeting in August 2009, the HOA expressed their apologies to the original complaintent HO of the adjacent property, and, the "HOAs gross negligence in their handling of the matter," for 3 years. The tree owner had until August 28th to again notify the HOA of his intentions. Otherwise the HOA said they would pay to have the lots surveyed and the tree removed. The HOA would later assess the survey and removal costs to the individual HO whose property the dead tree "officially" was on. If you recall, in 2006, the HOA had already said, via letter, they would take action with each homeowners if they did not comply in taking down their own tree or, stump.

As of yesterday, the HOA has reneged on everything it has said previously in 2006 and 2009. And, chooses not to be involved. But, by what they established in their correspondenses in 2006 and 2009, hasn't the HOA already involved themselves?

By this point the adjacent property owner has been trying to resolve this for close to 4 1/2 years. Because of this tree, HO has not installed a fence, delayed building a shed, finally choosing to move the location of the shed, plus does not feel safe using their own hot tub. The adjacent property owner took down a "stump" because it was required by the HOA, which at the same time, also required the tree owner to remove their tree.

The adjacent property owner feels like they have been led on a merry chase by both the tree owner and the HOA. As another poster mentioned, they will be further investigating the county laws. The HO is also considering filing a formal complaint with the consumer affairs office of the Attorney General, or the HOA commission in Rockville against their own HOA.

Any thoughts would be greatly appreciated. Thanks!

Laura,

My Association was told by our Lawyer that entering a property to perform said maintenance is trespassing. Since we are in neighboring States, it is possible this is the case with your Association as well.

Your past board threatened to enter the property and cut the tree down. The owner called the bluff and the Association failed to follow through. Since the Association has chosen to enter into this dispute, I would recommend that instead of possibly trespassing onto the property, that they follow your Associations enforcement policy (to the letter), hold a hearing and start a fining process. Perhaps $10 per day that the tree isn't removed. The owner should certainly get the message that it will be cheaper to have the tree removed vs. paying the fine (that could add up to $3,650 over a year).

I suspect that if you check with your Lawyer before hand, they would probably give advise supporting this action.

Hope this helps,

Tim

Michelle,

My home association in Florida had the same wording under Board responsibility.

It was tested when a H.O. installed a 300 gallon cistern for water collection without approval from the ARB. He was ordered to completely surround it with landscape that would hide it from view. It was NOT ordered to be removed because of Florida's energy conservation act so we tried to work with the guy. He did not respond and after going before the ARB and then the Board, the Board fined him. No response. After his 3 hearings and letters,the Board then entered with a landscaper and installed a row of very nice bushes around the cistern, billed him and sat back to wait for his response. The HOA lawyer told his lawyer that we had the right to take this all the way to the top of the judicial system and finally, his lawyer talked some sense into him. He paid for the bushes and all was settled.

The point is tho, why does it need to be a battle? Non compliance is just that. I give Board's so much credit when they stick to their responsibilities and follow thru, even if it means going to the last resort. When one cannot reason with a H.O. the niceness ceases and desists for me.

Thanks again. Great points.

I've reviewed the CCR. Just as I remembered, it does allow the HOA to enter a HO's property to remediate a problem if a HO refuses to act. The HOA would later assess the cost to the appropriate tree owner. Either by lien, or fine. The 2006 HOA letter and August 2009 HOA meeting supported this. Also, in the CCR, there is no differentiation as to whether a non-maintained tree is visible from the street or not.

"Each owner shall keep each Lot owned by him, and all improvements, therein or thereon, in good order and repair and free of debris, including, but not limited to, the seeding watering and mowing of all lawns, the pruning and cutting of all trees and shrubery..."

It is a difficult and potentially dangerous situation. This particular HOA is very strict on most issues, ie. trailer, wrong shade of white on a storm door, etc and fires off warning letters at a rapid rate. While for 3 1/2 years this situation has been tapped danced around, and, has had the adjacent HO jumping through hoops. And now with the HOA completely backing out of the situation. Even though the CCR clearly states this particular situation is one that can and should be acted upon. Although I've repeatedly been told no one gets special treatment from the HOA, I am increasingly doubtful. Particularly with the last letter saying the adjacent HOs 12 ft. "stump" was visible from the street which is *now* the excuse given for having it removed. That statement is pure fabrication. Both the "stump" and the 45 ft dead tree were located in the respective owners back yards, and within existing woodland.

It is for these reasons the adjacent HO feels a 3rd party should be consulted. Either the consumer affairs office of the Attorney General, or the state HOA commission. For whatever reasons, the HOA is refusing to act according to their own guidelines.

Often times when the violator is a former BOD member they know exactly what can be enforced or what the BOD is willing to do, so it can become a passive aggressive battle. If the H/O's involved cannot make the current BOD do their job and they're unwilling to take the time or effort to get the authorities involved, then there is nothing stopping them from taking the tree owner to court to make him remove the tree. The three affected properties should hire an attorney to send a demand letter, if that fails, take the guy to court. Chances are they will win and they can also sue to recover their attorney's fees and court costs.

Yet another example of the dangers of group think in an organization.

Fresh blood is definitely needed, and it might be in your best interest to get that done . . .