Someone Goofed

We have a situation where the developer placed a very nicely maintained landscape easement on a corner lot at the entrance to our subdivision. The lot was sold and a home was constructed on the lot. However, the home was a three car garage home which required to builder to put the house into the landscape foot print which in turn, required to builder to bulldoze part of the knoll away which left roots of the trees on the knoll exposed and weakened and left the trees (Maples) too close to the structure.

We have a few issues here: 1) By placing the home into the easement footprint, did the builder negate the easement? 2) Since the trees are weakened, they will surely create a hazard to the new home since they will never "root" correctly. What is the HOAs responsibility? 3) Should the builder be responsible for moving this landscaped area away from the home? Really a tough situation to work through!!!!!

We have discussed it, and the majority of us believe that by placing the home on the easement, the developer, in effect, gave up this easement and it should revert to the homeowner. What are your feelings on this?

The new homeowners seem very nice and are willing to work with the HOA and developer so this probably won't turn into a legal squabble.

No, the HOA does not own that property. It merely is responsible for Maintaining the landscaped area. The new owners actually own the lot, it just that there is an easement for the landscaping.

Keep in mind, that this is a new home, and the owners have not even moved in yet.

I guess the crux of the HOA's question is: Did the builder, by placing the house partially on the easement, effectively nullify the easement? In our covenants, it specifically states that we cannot erect any type of structure on any easement........But the builder himself did!!!!! This is a toughy!!!!!

No, unless specifically addressed as such, a contract (read: easement) cannot be nullified by the actions of one of the parties.

It's the same as if my neighbor had a road easement across my property, and I dumped a load of rack on it, and then claimed it was no longer a road because it had a pile of rock on it.

What's your skin in this game?

Good Point, however, a house is a bit different than a pile of rocks....I have no skin in this game except as possibly a future board member. (The developer is the "boss" until official given to us). The folks moving in are older and seem very nice with a genuine interest in maintaining a nicely (but safe) landscaped area.

Obligation to maintain, right of entry (easement), and risk avoidance are 3 different things that can be parceled out in many ways.

The first two are contractual, and don't change based on anything the builder did. The easement remains & the HOA must maintain if that's what's in your docs.

If you are still under Declarant control, then the time to deal with risk avoidance is when the transfer to HOA control is made. You may want to hire an arborist to get a professional opinion if the concern is significant enough. Of if you want the HO to pay for the arborist, then make the recommendation to the new owners that they should hire the arborist.

The problem of course is that we are now in the realm of 90% conjecture and very few facts to go on.

But - It is possible that the HOA could become liable for an improperly maintained tree after the Developer is gone.

Also, developer could go out of business - so HO could go after HOA.

Arborist opinion always a good idea when safety is a concern. If HOA recommends it to HO and HO doesn't follow through, then it's on the HO.

I just found out that the county is NOT going to approve this as is. So, thank you all for your comments. As far as the comment "MYOB" just trying to lend a hand to a couple of very nice older people (after being asked).

I did find out through all of this process that the HOAs (in IN) are TOTALLY responsible for all materials and and subsequent issues unless considered an "act of God"

Thank you all, very much

Michael, are you saying that the HOA--meaning all homeowners--is responsible for any & all defective building materials, lousy workmanship, etc.? And the developer would have no responsibility for those in the first 3-10 years (or whatever the statutes of limitation are in IN)?

And if they are hit by a car? Or a HO cuts them down with a hatchet?

I would imagine, that if a HO takes a hatchet to it, he is in violation of the covenants and could be fined (if provisioned) and at the very least be made to replace the tree.
It seems there is a very fine line here. If the HO believes his property is in peril due to actions by the HOA, he certainly has the right (and should) remonstrate to the board before taking any unilateral action, but in the case of an emergency, you do what you need to do. Now, the question arises: What is an emergency??? OH BOY!!!!

I guess it would not matter at that point huh? The tree is damaged and must be removed/replaced by the HOA. We will hang that guilty scoundrel as soon as we catch him!!!!

The county is not going to allow/approve what exactly?

Thanks

The home was built into the landscape easement which includes a landscape knoll. They had to move the knoll away from the house of course which resulted in exposed tree roots and a drainage issue. Everyone seems to be on good terms and are working to solve the problem. I have not talked to the new owners lately, but they seem to be happy with everyone's efforts to get this resolved.

Resolved? How so?

I'm surprised the bank approved a mortgage on a house sitting on an easement. Looks like the survey slipped through the cracks. You can be sure you haven't heard the end of this. Just wait until they sell the house. The easement will be an issue and the developer will be long gone.

My advice, have the developer change the easement while he is still in control. Otherwise it will be a mess for the HOA.