Cutting Tree on Common Ares

Started by GregA3 • 12 replies • 1643 views

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GregA3 (California)
Posts: 8

Posted:

I recently made a request to our HOA to have a tree which has been in the common area for 37 yrs, trimmed since it has been ignored and has grown higher than it should. It was normally about 10-12 feet high but has grown to about 15-17 feet high. I indicated that it provides good filtered light in the early morning but since it has gotten so high it is blocking the sun to my vegetable garden. I asked that the board inform me of their decision. Again, I only asked that it be trimmed/topped and that it is healthy.

My wife and I went on vacation for 2 weeks and when we came home, it was cut down. We now get direct sunlight in the morning which is glaring and we have no shade in our backyard.

I previously was on the board and tried to get a tree trimming schedule implemented but was blocked by other board members saying they could not afford to implement a trimming schedule. The current board is made up of 5 people but two of them have told community members untrue stories about my actions when I was on the board and they continue to say unpleasant/untrue stories. I feel this was an attempt to exercise their authority over me but I cannot say this to anyone since I have no physical facts but other members of the community have told me what these two have said.

Do I have any recourse to approach the board for a replacement tree?

DouglasK1 (Florida)
Posts: 2,046

Posted:

You can ask, but I think it's really the board's decision. Common area maintenance is the board's responsibility and within the limits of law and the governing docs, they can plant, trim, and/or remove trees at their discretion. Obviously there appears to be some history that might have played into their actions. Unfortunately pettiness on the part of boards is not unknown, but I don't think there is much you can do about it other than ask nicely.

Escaped former treasurer and director of a self managed association.

CarolF (Florida)
Posts: 435

Posted:

Greg - it is possible that an arborist was consulted about your request, and educated your board about
"topping" healthy trees. Please see the information below

http://www.treesaregood.org/treecare/resources/WhyToppingHurts.pdf

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By GregA3 on 04/25/2016 10:15 AM

Do I have any recourse to approach the board for a replacement tree?

Common areas are typically fall under the authority of the Board.

You might want to enter into an agreement to plant a tree at your expense and take care of it for the first year.

You might want to enter into an agreement to plant a tree at your expense and take full responsibility for it, including future trimmings and removal when needed.

You may want to simply plant a tree in your back yard that would be your responsibility and the responsibility of future owners.

GregA3 (California)
Posts: 8

Posted:

I am the originator of the question and I wanted to provide some more update on what I have found. The landscape company did not request permission from the board to cut down the tree but rather decided to use the maintenance directive and cut it down. I asked a president of the board if he knew about it and he was not. I told him I was in contact with the manager of the property to find out why this happened and what they plan on doing to correct it. I read the CC&Rs and the maintenance section says " The Association shall provide landscaping and gardening properly to maintain and periodically replace when necessary the trees, plants, grass and other vegetation originally placed in the Common Area and Common Maintenance Area by Declarant pursuant to landscape plans submitted to the City of Carlsbad and approved by said City ....". This tree has been here for 37 yrs, was healthy, and only needed minor trimming occassionally. It had never been topped/laced/thinned except for what I performed on it over the years.

I believe if the board was not aware of the action, the management company or the landscape company should be held accountable for their action and replace the tree with a reasonable sized tree (I don't expect a fully-matured tree to be planted).

Any comments or suggestions anyone would want to offer?

MarkM31 (Washington)
Posts: 351

Posted:

Quote:

Posted By GregA3 on 04/28/2016 9:46 AM
I am the originator of the question and I wanted to provide some more update on what I have found. The landscape company did not request permission from the board to cut down the tree but rather decided to use the maintenance directive and cut it down. I asked a president of the board if he knew about it and he was not. I told him I was in contact with the manager of the property to find out why this happened and what they plan on doing to correct it. I read the CC&Rs and the maintenance section says " The Association shall provide landscaping and gardening properly to maintain and periodically replace when necessary the trees, plants, grass and other vegetation originally placed in the Common Area and Common Maintenance Area by Declarant pursuant to landscape plans submitted to the City of Carlsbad and approved by said City ....". This tree has been here for 37 yrs, was healthy, and only needed minor trimming occassionally. It had never been topped/laced/thinned except for what I performed on it over the years.

I believe if the board was not aware of the action, the management company or the landscape company should be held accountable for their action and replace the tree with a reasonable sized tree (I don't expect a fully-matured tree to be planted).

Any comments or suggestions anyone would want to offer?

Good luck with that.

Besides raising your BP, this ain't going anywhere

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By GregA3 on 04/28/2016 9:46 AM
I read the CC&Rs and the maintenance section says "The Association shall provide landscaping and gardening properly to maintain and periodically replace when necessary the trees, plants, grass and other vegetation originally placed in the Common Area and Common Maintenance Area by Declarant pursuant to landscape plans submitted to the City of Carlsbad and approved by said City ....".

Have you contacted the city? The CC&R's imply that the declarant was permitted to develop this property because he entered into an agreement with the city. There may be a requirement that landscaping, including trees, be replaced if it is removed or destroyed.

The city's response may be to send out the SWAT team or they may shrug their shoulders and say, "Stuff happens." You will not know if you do not make the situation known to the city.

If the city does not take up your cause then it will be up to you to enforce the CC&R's through civil action.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By GregA3 on 04/28/2016 9:46 AM

I believe if the board was not aware of the action, the management company or the landscape company should be held accountable for their action and replace the tree with a reasonable sized tree (I don't expect a fully-matured tree to be planted).

Perhaps.

However, that is an issue for the Board to hold them accountable. Not you.

Your citation of the CC&Rs, to have the tree replaced, would be your position with the Board. Not who pays for it.

Take Larry's advice and obtain a PLAT of the development to document if that tree was planted or originally there when the property was developed. Then ask the Board to have the tree replaced as specified within the CC&Rs.

Who pays for that tree to be replaced is the boards issue.

You should also not expect a fully mature tree as a replacement. It will likely be 6-12 feet tall and may even be of a different variety.

The other option, I've already mentioned, ask to replace it yourself at your expense.

GeorgeR8 (Arizona)
Posts: 182

Posted:

"periodically replace when necessary..." Maybe your board doesn't think it is necessary to replace the tree. I do not read it as every tree and plant that were planted at the beginning must always be replaced in the same spot.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By GeorgeR8 on 04/29/2016 3:29 PM
"periodically replace when necessary..." Maybe your board doesn't think it is necessary to replace the tree. I do not read it as every tree and plant that were planted at the beginning must always be replaced in the same spot.

Good point.

Maybe "periodically" can mean once every 40 years.

Sikubali jukumu. Read all posts at your own risk.

GregA3 (California)
Posts: 8

Posted:

To all those who replied to my situation, Thank you for the various comments. I met with the management account person the other day to discuss the events and actions taken and found out the following:
1. the management company never notified the board of my request;
2. the landscape company made the decision without anyone's approval to cut the healthy tree down since it was over 15' high (which I disagreed with but now cannot prove) rather than top/trim it;
3. Since I pursued what actions and approvals went into the decision to cut it down, the management company is going to replace the tree with another tree (we will work together to get a reasonably sized tree planted) and consider having a fruit tree rather the a carrotwood tree which was removed.
4. the management company will look into cutting down 4 other dead trees that are posing a fire hazard at the moment and replace them with various fruit trees.
5. the cost of these trees will be split between the management company and the HOA. The management company acknowledged they acted without board approval.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Good job Greg.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Excellent Greg.

Glad everything worked out.

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