who owns the tree?

The HOA owns it as it is on common property. Because it is 10 feet tall, does that pose a problem?

BonnieE - Who donated the tree? The HOA owns the Common Elements, because of that the tree as well.

Thanks, Gerald. I think my previous response answers your question (?) -Bonnie

Hi Gerald,

This was my question/request to the Board via the MC (via email) – cut & pasted below:

"And, last question - do burr oak trees need to be trimmed/pruned? [landscaping company] has trimed other trees in the past as part of their tree care program, but has not done anything to this tree...I do realize that tree trimming is done in the winter. I didn't know whether it had to be a certain size before trimming or they are not trimmed."

This is the response from Board via MC (email):

"I’ve been advised by the Board and landscaper both that this tree actually belongs to you. You had asked for approval to install it many years ago, which you received. ... The association has advised that, since it is your tree, they will not authorize any association expenditures to trimming or pruning this tree. It is your tree, you are free to prune any dead branches, or raise the lower branches. It is not an association tree that you a unit owner is prohibited from trimming/pruning/altering, etc."

I’m curious why you asked…thanks,
Bonnie

BonnieE - There's clearly a misunderstanding on ownership that needs to be reconciled.

BonnieE - What do your governing documents state regarding procedure for owner plantings or improvements on the common elements? Is the tree on your property?

Bonnie,
I am getting mixed statements from you on where the tree actually is growing. Is it on common grounds or as you later stated, a common element?

"-I think the tree belongs to the HOA since it was donated, but more importantly, the Board has authorized its care for many years. In my mind, this establishes that it is ****(part of the Common Elements)** and therefore owned by the HOA.

That needs a better explaination for us. Is it on your actual property?

.

The tree is located on the legally defined Common Elements of the HOA. Not on the Limited Common Elements. I’m sorry for the confusion by referring to the Common Elements as the common grounds (out here, we refer to them as one and the same when talking about the landscaped areas including grassy areas, planting beds, wetlands, etc.).

We are townhouse-style condominiums. As such, none of the HOs individually own any property outside the boundaries of their dwelling units.

There is no written record of the donation, nor of what occurred. There was no request to plant a tree, per se. I came to the Board with the offer when I heard about the free trees; they thought was a good idea and agreed I should get one; I picked up tree; landscaper planted it.

Timing? Around 10 years ago? (how long does it take an ~12 inch “stick” to become a ~10 foot tree?

Hope this helps...thanks!

Are we getting into another argument on what the definition of is is?

You may be right that she is being vague and the tree may be on "her" property.

But I'm just taking her at her word that she is referring to the "common area" property as "common elements."

I may be wrong in that, which is why I said "I believe she stated . . "

She may have not really meant it was planted on the common area, just that by their (the board and the landscaper) planting it and maintaining it that it had become a "common element" in and of itself.

But I'm confused, then, by her comment here:

MicheleD - Bonnie wrote "In my mind this establishes that it is part of the Common Elements". Stress on the words, "In my mind". YET you wrote "I believe she has stated several times above that the tree was on common area." Both Donna and myself sought clarification. Me because of the words, "In my mind". Additionally, just because the COA is maintaining the plant doesn't mean they should. In this case we now know that the tree is indeed on common property. Thanks to the fact that both Donna and myself sought clarification and Bonnie now provided it. It's now not just a matter of something being in Bonnie's mind, it's a matter of reality.

Thanks, dad.

Bonnie,
Just as a footnote, yes. all trees need to be trimmed, shaped or pruned. Especially the "sticks that we get as free ones from the Arbor Day giveaways. Lower branches make room for bigger and stronger upper branches. Your landscape guys should know how to trim them.

Hi again,

Well, I have received a response from the Board. They state:
“…your concerns were relayed to the Board of Directors…Two members specifically remember how the tree came to be…that you would provide the tree and fencing, and [landscaper] would provide the mulch. Three members (the majority) state it has always been their understanding that this tree, therefore, belongs to you, just as when any unit owner wishes to put in plants of their choosing, they are responsible for maintenance.”

Obviously it is my word against that of two Board members as to how the tree came to be on the property. The 3rd board member mentioned in the response was not on the Board at that time and was not involved.

The facts are:

• I provided the tree.
• The Board authorized (paid) the landscaper to install the tree.
• The Board has paid the landscaper over the intervening years to care for the mulched area around/under the tree (the tree is separate from other trees, bushes) – including spreading new mulch several times, and extending the diameter of the mulched area to more than double its size as the tree has grown.
• The tree is only now possibly old/big enough to need trimming.
• Trimming the tree would not be an additional cost as there is a tree care contract in place for all of the trees.

Re fence: There had been no plan to install a fence around the tree. But once the rabbits moved into the neighborhood (we were a new development on farmland), they began munching the lower leaves of the tree. With Board permission, I installed the push-in garden fencing (they come in sections and are about a foot tall) for a summer.

Kirk – you make a good point re ownership. I still do not understand how I can legally own the tree, but if the Board is telling me I do….maybe I should leave it at that. But, I do not understand why the Board wouldn’t want this tree to belong to the HOA.

What if I were to move? Who would own the tree then?

Fortunately, burr oaks require minimal care as they grow quite well “in the wild”. Although, if I was to want to trim the lower branches, I wonder if I would need Board permission as they require permission for any changes made to the Common Elements. Another thought has come to mind…what if the Board should require I do something with or to the tree?

Any other thoughts would be welcomed. At this point I am not sure whether to continue to pursue this or not.

Thanks,
Bonnie

:roll

Michele – same here when I read their response. And, I agree. Except, if you lived here and knew this Board, then you might begin to see that this is not at all unusual for them to dig their heels in on this type of stuff.

And, you pose some good questions. As for looking into a disclaimer …yes, I will look into that, IF I own the tree. Maybe that is the question to ask an attorney – do I own the tree. On second thought, I think the Board should consult the HOA attorney on this. Another thought comes to mind – I can ask the insurance agent for the HOA as to who is liable if a kid climbs the tree and falls.

Thanks - Bonnie

Bonnie,

I think that they pretty much gave you permission to do with the tree as you want (for the moment anyway). If you are up to it, you might just go cut the lower branches as you see fit.

As for real ownership, I think the adage about possession being 9/10 of the law would apply in a court case.

Bonnie,

I can't believe the extent of this thread. Nor can I believe the (almost absurd) attitude of the board. If they choose not to maintain the tree, then they should either cut it down, or sue you for encroachment onto common property.

Absent any written agreement to the contrary (real estate agreements must be in writing in most states), a tree belongs to the property owner.

No amount of discussion is likely going to help dealing with such a obtuse, unrealistic board.

If you are given permission to trim it, then you may do so.

Kirk and George,
Thank you for your responses!
I couldn’t agree more with you.

As I stated earlier:
• I will ask the PM for any written documentation from that time regarding the oak tree (BOD minutes, etc.).
• The Board has responsibility for maintenance and upkeep of the Common Elements per our governing docs and IL condo act. The tree is located on the common elements.
• Tree trimming is covered by the tree care contract with our landscaper, not to mention the regular contract which includes lower branch trimming when needed.
• I will check with the insurance agent for the HOA re HOA liability associated with the tree should someone get hurt (fall off it – although I do not think the branches could hold a small child; or run into it on a bicycle; etc.).

I, too, am surprised at the Board’s actions, and, by the extent of this thread. Guess this has been an interesting legal question (it has been to me).

Thanks,
Bonnie

DJ,

No doubt George would do exactly as I suggestedd Bonnie do!

I would tell them it is their tree and leave it be. Eventually they will realize that the tree is their problem at any rate. For that matter, do they have proof that the tree ever belonged to Bonnie? Foggy memories won't mean much to either the courts or insurance companies.

This clearly is evidence of why stronger limitations on the powers of homeowners associations are required. This is a classic example of the Abilene Paradox.

I feel for you Bonnie. It is incredibly difficult to deal with irrational people.

If the tree is on common property, it are owned by the board. The board may have to increase the annual assessment in order to care for them.

If the tree growing in a common area is owned by a resident, then that resident is using common area for private use. Such private use of a common area restricts the free use of that area by other residents. It is an obstruction.

If that is the situation, then Bonnie should be required to remove the tree at her expense. Or the association should remove the tree and file a claim against Bonnie.

Here is what my covenants state:

Section 12. Obstruction. There shall be no obstruction of the Common Area, nor shall anything be kept or stored on any part of the Common Area without the prior written consent of the Association except construction materials and equipment during the construction period or except as specifically provided herein. Nothing shall be altered on, constructed in, or removed from the Common Area except upon the prior written consent of the Association.

This whole thing is idiotic. This board needs some common sense.

Bonnie,

As I suggested when you first posted this message -- cut the darn tree down and be done with it! Just make certain you keep that letter from the board stating the tree belongs to you. I seriously think this is what I would do.

If the tree was donated and accepted by the BOD, planted on common grounds then it is the associations. To be cared for by the associations landscapers (that you already pay for) and insured by the association.

Bonnie if you want to have some fun with the BOD tell them that in order to raise the $100.00 fine for your window you have decided to sell your tree to a nursery. And that while the nursery will need to dig up part of the common area in order to have an appropriate root ball for the tree; you will backfill it unless the BOD would like to put in a fish pond in the hole.

Or I found this form online which you could possibly use to officially donate the tree to the HOA.

QUITCLAIM BILL OF SALE
BE IT KNOWN, for good consideration, and in consideration of the payment of ZERO DOLLARS, the receipt and sufficiency of which is acknowledged, the undersigned BONNIE(Seller) hereby sells, transfers, assigns and conveys unto HAPPY DAYS HOA and its successors and assigns forever with quitclaim covenants only, the following described property:

ONE OAK TREE

Seller hereby sells and transfers only such right, title and interest as it may hold and that said chattels sold herein are sold subject to such prior liens, encumbrances and adverse claims, if any, that may exist, and Seller disclaims any and all warranties thereto.

Said assets are further sold in "AS IS" condition and where presently located.

Signed this _____ day of __________________, 20____.

In the presence of:

______________________________
Seller

_______________________________
Witness