view protection

I'm a member of the BOD of a HOA of a residential, single family community in Washington state. We are dealing with a homeowner whose shrubs and trees have grown tall and are now blocking the views of two other homeowners. We have language in our CCR for view protection (see below), but the offending homeowner (the one whose trees are blocking the view of others) is trying to take advantage of the wording of the CCR. The homeowners whose views are blocked have tried to negotiate with the offending homeowner, and at first, the offending homeowner denied her trees are blocking any views. The two homeowners brought the issue before the Board and we determined that certain shrubs and trees do need to be trimmed. The offending homeowner hired herself a lawyer and is alleging that one of the tree will die if it's cut back to 6 feet and she wants the other homeowners to cut it down, grind the stump, and replant it or she will claim damage for the loss of value of the tree. Also, the offending homeowner is stalling by making herself unavailable when the other two homeowners try to schedule meetings with her to negotiate terms and time to do the work. The two homeowners is asking the Board to act before they have to commit a lot of money and time to sue for loss of value. Is there any work around to this problem? The CCR as written seems to favor the offending homeowner. But could the offending homeowner be violating implied good faith and fair dealing in contract law?

Section 16. [AMENDED] Maintenance of Tree and Plant Height (Affects Lots in THE ESTATES Only). On Lots which have a ridge height limitation as set forth in Section 15 in this Article XII, no trees, shrubs, hedges, or plants of any kind over six (6) feet high may be allowed to block the view of Mount Rainier or The Cascades or the valley floor for those upslope or adjacent Lots which would be adversely affected by such vegetation. If any tree, plant, hedge, etc., grows above six (6) feet high and partially or completely blocks said views from any of these affected Lots, the Owners of Lots whose view is blocked may, at their expense, trim said trees, plants, etc., down to a level that is not blocking their view, but in any event not less than six (6) feet in height. However, any other damage and/or liability incurred by the trimming and removal of slash from trees or plants shall not be waived. All work must be accomplished in a neat and clean manner by a licensed and bonded contractor and all landscaping returned to its original condition. Furthermore, prior to any such trimming action by the affected Owner, the Owner on whose Lot the vegetation exists shall first be notified in writing, and the timing for the activity shall be coordinated to accommodate each Owner involved. In the event of any dispute, both Owners shall present their case to the Committee, and the Committee shall decide whether the vegetation should be trimmed or not.

I see no problem at all. Everyone purchased homes with the same set of covenants and one of them allows neighboring owners to trim trees that block their views. The person who owns the trees waived their rights against trespass by signing on the dotted line.

Providing that this is actually the case, Larry, perhaps you are right. However, the covenant cited said that it was amended. We don't know what the amendment was. Therefore, there may or may not be a case to actually challenge the amendment itself. We just don't have enough of the details to be sure.

That section as it reads is the amended version. It was amended years ago before I joined the board. I probably should have edited out that word since it's not pertinent. I don't know what it says before it was amended without going to the city clerk and dig up record. This issue is not about property lines. All the trees and shrubs involved are inside the offending homeowner's property and no limbs or branches cross property line. The issue is about view protection, which I understand the city and state does not usually protect unless it is somehow protected in the covenant. There are no city ordinance on fences or similar that addresses view protection. I guess I should also say that these houses are on a ridge and has views of the valley and mountains. And there is no section on the covenant that gave permission to enter your property without your permission. It specifies that both parties have to agree on when the work should be done.

Eric … we are not attorneys and can only give personal opinion … having said that if I read your section posted:

Section 16. [AMENDED] Maintenance of Tree and Plant Height (Affects Lots in THE ESTATES Only). On Lots which have a ridge height limitation as set forth in Section 15 in this Article XII, no trees, shrubs, hedges, or plants of any kind over six (6) feet high may be allowed to block the view of Mount Rainier or The Cascades or the valley floor for those upslope or adjacent Lots which would be adversely affected by such vegetation. If any tree, plant, hedge, etc., grows above six (6) feet high and partially or completely blocks said views from any of these affected Lots, the Owners of Lots whose view is blocked may, at their expense, trim said trees, plants, etc., down to a level that is not blocking their view, but in any event not less than six (6) feet in height. However, any other damage and/or liability incurred by the trimming and removal of slash from trees or plants shall not be waived. All work must be accomplished in a neat and clean manner by a licensed and bonded contractor and all landscaping returned to its original condition. Furthermore, prior to any such trimming action by the affected Owner, the Owner on whose Lot the vegetation exists shall first be notified in writing, and the timing for the activity shall be coordinated to accommodate each Owner involved. In the event of any dispute, both Owners shall present their case to the Committee, and the Committee shall decide whether the vegetation should be trimmed or not.

It appears to me:

1. The last sentence above states that in event of dispute the case is presented to Committee and which you stated was done with committee stating the trees should be trimmed.

2. The documents DO NOT allow trees or any plants above six (6) feet.

3. It states another owner can trim using a licensed and bonded contractor.

4. Prior to trimming owner not in compliance shall be notified in writing AND timing for activity shall be coordinated to accommodate each owner involved.

5. It also states that any other damage and/or liability incurred by trimming shall not be waived.

However, the way I read this the owner affected is not required at this time to take the tree down, grind out the stump, and replace the tree. The owner would only need to perform those tasks if the tree actually does die after being cut back to 6 feet. The owner cannot claim any loss in value for the tree if it has not yet been affected and still living.