CCR’s - ENCROUCHMENT

Started by GeneG3 • 7 replies • 287 views

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GeneG3 (Arizona)
Posts: 29

Posted:

How do your ccr’s address encrouchment issues - I.e., overgrown bushes or trees. I’m about to have to bring our HOA into a matter i am encountering with my neighbor and the HOA president says our CCR’s only address encrouchment if it is over or around a pool or a deck. The neighbor is a very unreasonable irrational person who believes he can use my property for his tree limbs under a prescriptive easement. I have hired an atty and will be sending formal complaint to our HOA seeking they provide me a formal response, and hopefully the HOA will seek legal expert advice. The CCR’s do advise pools and decks but also ends that sentence with ETC. I would think that any CCR’s would provide for protection from encrouchment, and not just provide protection if you had said encrouchment over/around a pool or deck. This tree, in my case is over my driveway and house.

AugustinD
Posts: 3,698

Posted:

GeneG3, I am glad you can afford an attorney.

The question of what rights a property owner in a HOA has when tree limbs or roots encroach on the property owner's land comes up a fair amount at this forum.

From experience, I would be surprised if the CCRs actually say you have a right to force the owner of the tree to trim the limbs overhanging your lot. In my experience, at most the CCRs may have a nuisance clause. But in Arizona, I think even the nuisance clause will not help. This is because of what Arizona case law and/or statutes say.

By my reading over the years (going back a dozen years now on this topic), every state is a bit different on the subject of tree limbs and tree roots. You can google on what the law is in Arizona. My quick check indicates that in Arizona, you have the right to trim the branches up to the tree owner's property line and no more. You (and not the tree owner) have to pay for the trimming. If per chance the tree dies as a result of the trimming, you could be held responsible for this and have to pay the tree owner damages. See for example:

https://combslawgroup.com/responsible-overhanging-branches/

https://phoenixtrimatree.com/tree-disputes-with-neighbors/

GeneG3 (Arizona)
Posts: 29

Posted:

Thank you for your input. Yes, I am aware, I will pay to trim tree overhanging my property. The neighbor now declaring use of my property by prescriptive easement is the legal matter to get resolved and conveyed as tree limbs can not acquire an easement over another persons property. I had no choice but to hire atty and was hoping for more protection in this matter from our ccr’s. I have learned - your hoa is only as good as your ccr’s. We have both a lazy board and not well written ccr’s. I think any property owner being told by neighbor, I can use your property, and I’m not cutting my tree, and you can not cut it, has no other option, than to seek resolution utilizing a real estate atty.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I'm a bit surprised that the HOA would attempt to regulate encroachment on private property and not consider it a neighbor-to-neighbor dispute. But if they mention decks and pools, that does sound like they're dealing with what happens on individual lots (unless those lots are actually owned by the HOA and only the homes are privately owned.

I think the issue would be more easily settled between the neighbors, with a judicious application of lawyers if needed. I don't blame the board for not wanting to touch this. The HOA actually has limited ability to control what homeowners do - at best they can penalize bad behavior via fines, which a homeowner may or may not respond to. The board also doesn't want the HOA involved in legal action which will cost money and raise assessments, not to mention hurting people's ability to sell or refinance their homes.

TimB4 (Tennessee)
Posts: 21,061

Posted:

I don't think it's an HOA issue.

It's a neighbor v neighbor issue.

If your hiring an attorney, have them send the letter to the individual.

BTW: Here is info on property lines in AZ (specifies you may trim limbs along the property line, providing you don't kill the tree):

Property Line and Fence Laws in Arizona from Find Law

BenA2 (Texas)
Posts: 1,273

Posted:

Our CC&Rs do not address this issue and we would not get involved. I would think that in most HOAs this is a dispute between owners. What you are describing is a common issue for which there are legal remedies. I do not see any reason why the HOA should get involved.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Gene

Aug posted: By my reading over the years (going back a dozen years now on this topic), every state is a bit different on the subject of tree limbs and tree roots. You can google on what the law is in Arizona. My quick check indicates that in Arizona, you have the right to trim the branches up to the tree owner's property line and no more. You (and not the tree owner) have to pay for the trimming. If per chance the tree dies as a result of the trimming, you could be held responsible for this and have to pay the tree owner damages.

I agree that this is the typical way to handle it.

LoriM15 (Florida)
Posts: 1,009

Posted:

Quote:

Posted By BenA2 on 02/04/2022 8:29 AM
Our CC&Rs do not address this issue and we would not get involved. I would think that in most HOAs this is a dispute between owners. What you are describing is a common issue for which there are legal remedies. I do not see any reason why the HOA should get involved.

I agree. The only encroachment that our HOA would involve ourselves in is if one of the trees on the master property was overhanging or causing issues on an owner's property or if an owner's fence was built on master property. We don't get involved in neighbor disputes like this.

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