Can the HOA control "delayed developer landscaping"?

Started by JosephH2 • 12 replies • 1467 views

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JosephH2 (Pennsylvania)
Posts: 57

Posted:

Our HOA of 75 total townhouses and semi-attached was turned over to homeowner control in April of last year.

About 6 months ago a home was sold with “delayed developer landscaping”. The owner took possession but, to spread out the cost, the owner had arranged with the Developer to leave out the landscaping at the time of sale and put in the landscaping over the following 6 months or so. All is done now except for two trees which are scheduled to be planted in the Fall.

My question is, does our HOA have the right of approval for these trees which are to be planted by the Developer after sale of the home?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This may be something to work on together. It's important to know what trees are planning to be planted. There are certain trees that can cause serious issues when fully grown. Your HOA may want to think about talking to an arborist or the city's beautification board to find a list of suitable trees. Then take that list, make an approved list to give to the developer and future owners.

Believe me, it's a nightmare to take down some trees much later. Bradford Pear trees are beautiful but are horible with maintenance over the long term. Weeping Willow trees can rip up water lines. This why I emphasize doing some good research when allowing certain trees to be planted. The developer is still living up to their end with planting the trees. It's just best to have some guidelines in place before they do.

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JosephH2 on 08/14/2012 11:49 AM

My question is, does our HOA have the right of approval for these trees which are to be planted by the Developer after sale of the home?

As this was done through the developer, I expect that the developer was in control of the Association at the time.
Therefore, the Association (i.e. the developer) likely already approved those trees.

JosephH2 (Pennsylvania)
Posts: 57

Posted:

Tim,

The homeowners were in control of the HOA before the sale of the house.

We are wrestling with getting the developer to get HOA approval for landscape changes. He says he doesn't have to but I can't find anything in our docs that says if he does or doesn't.

This is a wierd variation of the problem where the homeowner would normally be required to ask for approval but says that the trees are being planted after the sale by agreement with the developer prior to sale.

Hope that makes sense.

DaveD3 (Michigan)
Posts: 796

Posted:

If the homeowners were in control when the home was sold, the fact that it's the developer providing the landscaping is irrelevant. As soon as control is transferred, the developer is no different than any other owner.

GlenL (Ohio)
Posts: 5,491

Posted:

Melissa, I'll see your Bradford Pears and Weeping Willows and raise you Blue Spruce and Douglas Firs. That is what our developer planted five feet away from our buildings. Now they looked great when they were only five or six feet tall but fast forward ten years and they were taller than the buildings and growing against them. When the Board had them cut down half of the homeowners cheered, for the other half, there was much gnashing of teeth and threats of lawsuits.

Studies show that 5 out of 4 people have problems with fractions

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Spent over 2K in cutting down and trimming trees...Then the contractors damaged cabling, electrical, and phone lines... I am a tree hugger but they had to go! However, had to hear the complaints as well as the applause. Made a world of difference once completed. Made sure no one planted trees that got too wide or tall.

Former HOA President

KevinK7 (Florida)
Posts: 1,343

Posted:

I would think that even though the Association was homeowner controlled at the time of the sale, since the HOA did not raise any issues with either the Developer or the buyer at the time the deal was hashed out, the HOA was complicit in the plan to install landscaping in a segmented manner.

This would be like ignoring a building being constructed without architectural approval and then complaining when the roof is being put on.

JosephH2 (Pennsylvania)
Posts: 57

Posted:

Kevin,

We had no way of knowing that the delayed landscaping was agreed to until after the sale.

All we knew was that the house appeared to be near complete and the next thing was that the owner moved in with no landscaping. We only found out from a neighbor of the owner that the landscaping would be done over time.

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By KevinK7 on 08/14/2012 3:34 PM
I would think that even though the Association was homeowner controlled at the time of the sale, since the HOA did not raise any issues with either the Developer or the buyer at the time the deal was hashed out, the HOA was complicit in the plan to install landscaping in a segmented manner.

This would be like ignoring a building being constructed without architectural approval and then complaining when the roof is being put on.

I disagree. At the point the deal was hashed out, the developer was no more special than any generic landscape contractor would be. That they were the developer is irrelevant. The HOA has no place in those negotiations.

Regardless of the terms of the deal, it was incumbent upon the OWNER to seek approval for ALL of the landscaping that was done (assuming the bylaws require approval for any exterior changes & landscaping).

If the landscaping was installed without HOA approval, THEN we have a case of the HOA being complicit. If additional trees are being planted a significant period of time later, the HOA has no reason to see those as part of the original plan. They're NEW changes unless they were in an earlier submitted plan.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By JosephH2 on 08/14/2012 3:53 PM
Kevin,

We had no way of knowing that the delayed landscaping was agreed to until after the sale.

All we knew was that the house appeared to be near complete and the next thing was that the owner moved in with no landscaping. We only found out from a neighbor of the owner that the landscaping would be done over time.

Two questions:

1: Does your HOA have covenants/rules/etc. regarding exterior landscaping?

2: Were there plans or drawings on file somewhere or published at one time or another regarding the landscaping of this property prior to turnover? And if there was, does the buyer's current delayed development differ from such plans?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Joseph

Typically the docs would say if the HOA is in owner control then the HOA could control what was done under the the vagueness of similar, etc. If so, the HOA screwed the pooch as in they did not take charge and they allowed "someone" to do as they desired to do.

That said, the docs might well say that even if control has been turned over to the owners, they might not be able to stop the original declarant from "finishing/filling out" the neighborhood under the same vagueness of similar.

We had one go around on this chat about someone objecting to the type/style light installed over the garage door as it did not "match" in her view. Talk about vague....LOL

As my HOA is getting ready for turnover from declarant to owners, this subject will go on my list of issues to be discussed. Thanks for bring it up.

Hope this helps you, and it will aid me during our turnover.

Thanks

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I wonder if this could have been related to the terms of the mortgage/loan? I know that in our area that when a new house is built there has to be a certain amount of landscaping. The mortgage companies require grass be installed atleast up to the front corners of the home. The backyard grass can be added later or be planted as seed. That won't effect the loan closing.

A few years ago my ex had built a house. We had to lay sod all the way to the house corners before the mortgage company would let him close. Nothing like 100 degree weather and laying down sod...So I can understand that since the house was not finished at turnover time the developer may indeed owe this person their landscaping. The type of tree or landscaping may depend on the season best to plant.

So I would say that the developer does indeed need to live up to their end of the bargain. However, I don't believe it means the HOA can't have some kind of input on what is planted. It has to be determined who will be responsible once installed if it's HOA responsibility or the owners to maintain. That is more of the real issue here.

Former HOA President

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