Ugly trees in common area

Our HOA Rules & Regulations stipulate that " any tree in a Common Area deemed to be a nuisance by a member may be removed by the Board of Directors for health, safety or esthetic reasons". I had a tree removed in a common area by the Board 6 years ago because it had completely blocked my mountain view and had not been properly maintained by the HOA for years. Today the same situation has returned and the Board has stated that they cannot remove, maintain or trim the trees in question because views and visual appearance of the trees are not specifically spelled out in the word "esthetics". I am flabbergasted. Our HOA is blessed with stunning mountain vistas and these views are certainly a large part of the reason I purchased here. Also, I I liked the fact that Rules & Regulations offered protection from anyone adversely affecting our views. I have talked numerous times to the Board but they have dug their feet in on this. Is this a sign of an HOA in trouble?

The trees hadn't been maintained to the same standards as the rest of our Common Areas for decades, because the previous Boards were falsely led to believe that these areas were regulated by the County. It wasn't till recently that that was shown to be false, but the damage was already done by then. Generally, as pertains to real estate, mountain views are considered an aesthetic feature. But as to your comment that only health & safety should be considered, then why was the word "esthetic" included in the original Rules & Regulations, written almost 50 years ago? If they only were concerned with health and safety they could have stopped there. But they didn't, they added the word "esthetic". Oh, and by the way, several of the trees were planted in violation of the Rules & Regulations. It has become a very complicated situation and I was wondering if anyone else has been through something like this. Because this common area was neglected for years, it seems there may be some recompensation of dues due to the affected homes.

I didn't say heath and safety should be the only criteria. It's easier to determine if a tree has become a safety hazard than if it's too ugly to stay around. All you've said is that this tree is blocking your view - that doesn't mean it's ugly (whatever THAT means).

You said previous boards thought the trees were regulated by the county - now that they know otherwise, it appears your community needs a formal plan regarding planting, maintenance and removal. We had an arborist evaluate all our trees several years ago because we had several problems, like sewer line replacement.

We got rid of the problem trees and now we know what to avoid and better maintain what we have. Why not suggest that and the review can address if certain species shouldn't be planted because they can obstruct the view.

Maybe it's me, but that would make more sense than "recompensation if dues due to the affected homes". Where, pray, do you think the money will come from? The association- and where does it get money from? Yup, YOU AND YOUR NEIGHBORS!

By the way, assessments is the correct word - dues are voluntary, assessments are mandatory when you buy a home in a homeowners association.

Back to this compensation thingy - who8o will determine if X number of homes lost X amount in value for X number of years? There are debates on this website and elsewhere on what constitutes property values and how much they affect the sale of a home. How many homes and do all these people feel the same as you?

Clearly you're unhappy with this board, but the best way to address that would be to vote them out. You can rally together your neighbors if they agree, but you'll need replacements - are YOU willing to be one of them? If so, have at it.

If you win, start running some numbers on tree maintenance and perhaps amending the documents to address "esthetic". The homeowners can then determine how much more they want to spend because this will result in adjustment to the assessments. If most of them say "nah", you'll have to convince them otherwise.

JohnV9, in my experience and per the advice of counsel, the best way to deal with situations like this (where there is a lot of latitude IMO) is to run for the board with others who feel as you do and hopefully win a board majority.

Remember that board directors are unpaid and often not particularly skilled in reading covenants and other law. They are doing the best they can.

JohnV9, if you would be satisfied with forcing the HOA to trim the tree, I like your chances.

I do not like your chances of getting the tree removed. This is because IMO "aesthetic" pertains to the outward appearance of the tree and the grounds in general. One could easily argue that this tree makes the grounds more attractive. It is a subjective call. The board has every legal right to argue that the tree has to stay for aesthetic reasons.

I do not feel what happened in the past is all that relevant. And yes, I hear you that you and others may have relied on the unobstructed views when purchasing in this HOA. However from years of reading case law, including case law involving trees obstructing views, if push came to shove, then I would not be at all optimistic of your prevailing. And it would cost a fortune to go to court, with no guarantee of winning.

At most I think you could get the HOA to trim the tree.

Do your CCRs or Bylaws require that the HOA participate in mediation? Please quote exactly what the CCRs and/or bylaws say about resolving disputes.

Arizona does have an ombudsman for HOA disputes.See https://azre.gov/consumers/hoa. From my reading over the years, this ombudsman does seem pretty effective, as long as there is a bona fide violation of the bylaws or covenants. The first step in using this ombudsman is to identify what bylaw or covenant is being violated. Stay completely focused on this violation. In other words, leave out the alleged mistakes of past years. What is the board doing right now that you believe violates the covenants or bylaws? Your response should be something like: "Covenant such-and-such requires removal/trimming of a tree that is a nuisance aesthetically. Such-and-such tree is a nuisance aesthetically. The board refuses to comply with the covenant."

Is this a condominium? I ask because Arizona statutes may have something to say about dispute resolution.

Respectfully, I think you have to read carefully what the DRE can and cannot do. Like many government agencies, it does not want to squander resources on "gray" situations. I believe the DRE aims to deal in black-and-white issues. When it comes to violating the covenants, I feel your issue has a huge subjective component.

Your best option may end up being running for the board with others who feel as you do.

Attorneys give advice (may be good or bad).

It is up to the board if they want to follow that advice.

Unfortunately, esthetic (or aesthetic) is a subjective term and can be defined differently from person to person.

I guess the $64,000 question is - can the Board determine that the word "esthetic" includes views, or for that matter, beauty? Our covenants prohibit privacy hedges of more than 15 feet. These trees are more than 35 feet and grown wild and were planted in a non-compliant manner in violation of our CCR's. I don't believe AZ Law would interfere in HOA covenants unless they were discriminatory. This is a very interesting case, with a lot of components. Does anyone know where I might find similar cases to study?

I think the question is: Does removal of this tree make the grounds more beautiful, because it allows a better view? I say "Sure."
This is something ADRE might very well seize on.

The covenant that says these trees were non-compliant is not simply abandoned because of this one violation that has not been remedied for years.

If the entire line of houses can argue that trees (which are replaceable and not endangered) should be removed for enjoyment or value creation, my opinion is the board should follow the request if it's in the budget OR allow the homeowners to fund the cost of complete removal as other homeowners shouldn't necessarily subsidize such a job in all cases.

Aesthetic/esthetic concerns are easily defined and are subjective. The subjective standard would apply at the time of a board vote to remove the trees and it would be silly for future boards to attempt a post-dated reconsideration of project.

The HOA is not in trouble. My bet is that they don't wish to spend several hundred to a thousand dollars for the spot removal of a healthy tree, which is a valid policy question at the HOA level.

The raisin d'etre for HOAs is to offload costs from the city/county to individual homeowners. Nationwide cities tend to require developers to have a HOA, so that the city can get out of paying for all manner of services. Home values are kind of an afterthought.

A great deal of case law exists on the subject of vague and ambiguous covenants. The phrase "expressio unius est exclusio alterius also gets applied a lot to covenant disputes. But these disputes (over ambiguous covenants) are typically not about board decisions concerning common areas. Instead they are disputes between the board and an owner about what the owner is doing on his/her lot. The difference is huge. In your case, we are talking about a dispute over how the common area is maintained, with attention to the covenant you quoted in your first post.

Fact: From case law interpreting board powers, a board has a lot of legal latitude when it comes to decisions about the common areas. Their biggest obligation is to "maintain" common areas. "Maintain" can sometimes be situation-dependent and subjective.

IMO your HOA's attorney has a gross conceptual error about "vagueness" et cetera when it comes to this covenant.