Liability vs Maintenance

LetA (Nevada)
Posts: 2,679

Posted:

The HOA I live in has had three developers complete our development. All of them planted trees that have invasive root systems.
In our CC&R's the HOA provides for maintenance in the common areas as well as trimming bushes, hedges and plants in home owners front yards, including pulling weeds.
The CC&R's really don't state that they trim trees, but they do.

Many of the home owners have a mix of Palo Verdes, Mesquites and various varieties of Crepe Myrtles and other similar looking species.
The Paols have come into play because the roots of one Palo was growing over a waling path causing an imminent tripping hazard.
The owner that lives across the street from me had a Palo that suffered a fallen branch and a lightening strike and the root grew 8' over causing the driveway to buckle.
The HOA paid to have the tree removed off private property as well as grinding down the driveway slab on private property.

All of the above mentioned areas except for the walking path are private property, home owners front yards and driveways are not common areas.
the HOA sent out a letter from the HOA attorney wanting homeowners to sign a waiver of liability if they have a Mesquite or Palo Tree releasing the HOA from liability.
I don't think it is fair to put the cost burden on the entire HOA to remove trees off private property. Out of 320 homes and about 60% have Palos or Mesquites tress, at $300-400 per tree to remove & grind down the stump is cost prohibitive.

What options do we unaffected owners have?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LetA on 11/02/2017 1:02 PM

I don't think it is fair to put the cost burden on the entire HOA to remove trees off private property. Out of 320 homes and about 60% have Palos or Mesquites tress, at $300-400 per tree to remove & grind down the stump is cost prohibitive.

What options do we unaffected owners have?

In this type of situation, the only option is for the Association to take the other owners to court.

Although not applicable outside of VA, the following is provided:

FANCHER v. FAGELLA Virginia Supreme Court Record No. 062339, September 2007

Va. High Court Breaks New Ground on Tree Liability Washington Post article about the decision

Your Neighbor's Tree and Your Rights from a law blog referencing the case

Whose Limb Is It Anyway? from a VA law firm

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By LetA on 11/02/2017 1:02 PM
The HOA I live in has had three developers complete our development. All of them planted trees that have invasive root systems.
In our CC&R's the HOA provides for maintenance in the common areas as well as trimming bushes, hedges and plants in home owners front yards, including pulling weeds.
The CC&R's really don't state that they trim trees, but they do.

Many of the home owners have a mix of Palo Verdes, Mesquites and various varieties of Crepe Myrtles and other similar looking species.
The Paols have come into play because the roots of one Palo was growing over a waling path causing an imminent tripping hazard.
The owner that lives across the street from me had a Palo that suffered a fallen branch and a lightening strike and the root grew 8' over causing the driveway to buckle.
The HOA paid to have the tree removed off private property as well as grinding down the driveway slab on private property.

All of the above mentioned areas except for the walking path are private property, home owners front yards and driveways are not common areas.
the HOA sent out a letter from the HOA attorney wanting homeowners to sign a waiver of liability if they have a Mesquite or Palo Tree releasing the HOA from liability.
I don't think it is fair to put the cost burden on the entire HOA to remove trees off private property. Out of 320 homes and about 60% have Palos or Mesquites tress, at $300-400 per tree to remove & grind down the stump is cost prohibitive.

What options do we unaffected owners have?

Potentially your issue is the CCR's per your above statement I noted in "bold above" essentially notes that ALL "front yards" are to be maintained by the HOA ... Sorry some of those "front yards" will include trees.

Waiver??? LOL ... Why would any owner in their right mind and aware of HOA being responsible sign any such waiver???

Private Property Tree Removal ... TRUE ... But, again your CCR's potentially note the HOA is responsible for ALL maintenance of "front yards".

OPTIONS: Your best option would be to Amend your CCR's and have all owners responsible for their own "Private Property" by removing the section noting the maintenance of front yards. However, you need to try and get the majority of ownersto agree per your CCR's or State Laws before they all become aware of the fact that 60% have the Pablos or Mesquites causing the problems. When becomes more apparent that potential 60% will be less likely to agree to any such changes.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By JanetB2 on 11/02/2017 9:50 PM

Posted By LetA on 11/02/2017 1:02 PM
The HOA I live in has had three developers complete our development. All of them planted trees that have invasive root systems.
In our CC&R's the HOA provides for maintenance in the common areas as well as trimming bushes, hedges and plants in home owners front yards, including pulling weeds.
The CC&R's really don't state that they trim trees, but they do.

Many of the home owners have a mix of Palo Verdes, Mesquites and various varieties of Crepe Myrtles and other similar looking species.
The Paols have come into play because the roots of one Palo was growing over a waling path causing an imminent tripping hazard.
The owner that lives across the street from me had a Palo that suffered a fallen branch and a lightening strike and the root grew 8' over causing the driveway to buckle.
The HOA paid to have the tree removed off private property as well as grinding down the driveway slab on private property.

All of the above mentioned areas except for the walking path are private property, home owners front yards and driveways are not common areas.
the HOA sent out a letter from the HOA attorney wanting homeowners to sign a waiver of liability if they have a Mesquite or Palo Tree releasing the HOA from liability.
I don't think it is fair to put the cost burden on the entire HOA to remove trees off private property. Out of 320 homes and about 60% have Palos or Mesquites tress, at $300-400 per tree to remove & grind down the stump is cost prohibitive.

What options do we unaffected owners have?

Potentially your issue is the CCR's per your above statement I noted in "bold above" essentially notes that ALL "front yards" are to be maintained by the HOA ... Sorry some of those "front yards" will include trees.

Waiver??? LOL ... Why would any owner in their right mind and aware of HOA being responsible sign any such waiver???

Private Property Tree Removal ... TRUE ... But, again your CCR's potentially note the HOA is responsible for ALL maintenance of "front yards".

OPTIONS: Your best option would be to Amend your CCR's and have all owners responsible for their own "Private Property" by removing the section noting the maintenance of front yards. However, you need to try and get the majority of ownersto agree per your CCR's or State Laws before they all become aware of the fact that 60% have the Pablos or Mesquites causing the problems. When becomes more apparent that potential 60% will be less likely to agree to any such changes.

Since my HOA BOD nor the CM care to hire an arborist when it comes to tree pruning, they hire Jose with a chain saw. Yes Jose has insurance and is licensed and bonded, but he is not a certified arborist. The same goes for the landscaping company, none of the workers are certified in anything except how to use a leaf blower. Our HOA had beautiful fountain grass and other shrubs. The landscape workers cut the fountain grass down to the base, they looked like dried out blobs of divots from a golf course.

I for one would be in favor of maintaining my own front yard, because I am the one always pulling weeds, not the landscapers that my assessments pay for. I would also trim my own hedges.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I would agree with your LetA ... I also would prefer to maintain my own front lawn. However, you still have the issue of getting all other homeowners in your HOA to also agree to Amend your CCR's. The question then is ... will the majority agree???

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By JanetB2 on 11/04/2017 7:51 PM
I would agree with your LetA ... I also would prefer to maintain my own front lawn. However, you still have the issue of getting all other homeowners in your HOA to also agree to Amend your CCR's. The question then is ... will the majority agree???

The main problem we have, more than 50% of the homes in my development are rentals. All of our homes are Xeriscape, so there are no lawns to mow.

The Board can't even get the deeded property owners to get their renters to quit violating the CC&R's. I highly doubt the owners will respond in time to
vote on a reg change. I wish the NRS allowed for live-in owners to vote instead of 2/3 majority. Then again I wish the NRS would mandate less than
10% rentals in HOA's.