J.W. from Collin County, Texas writes:
Dear Mister Condo,
We’ve lived in our Condo for over 5 years. We have an enclosed patio/fenced in patio, which I understand is considered a “limited common element” per the HOA CCR. There is a large oak tree in the corner of our patio, it is the same size as every other oak tree on the property. We were recently informed (verbally, in passing) by the HOA that the tree roots would begin damaging the foundation and the tree needed to be removed within the next few years and that this is our responsibility. Is this accurate? I’m not finding any specific information in the CCR about trees in general or limited common areas, just that the owner shall maintain and keep in repair the interior, fenced patio garden area, and storage space of his/her unit. I agree that the tree is poorly placed, but it has always been trimmed when the rest of the trees were and paid for/organized by the HOA, it’s news to us that this should suddenly be our responsibility. I appreciate any advice!
Mister Condo replies:
J.W., I can understand how the ambiguity of tree maintenance and the responsibility for tree replacement can be confusing for both you and the association. Clearly, if the oak tree roots are going to damage the foundation, it is in everyone’s best interest that the tree be removed and/or replaced. We have a similar problem here in Florida where oak tree roots damage driveways, sidewalks, roadways, and foundations quite often. Each association handles it differently based on the governance documents. As you mentioned, yours appear to be silent on the ownership of the tree. The terms condo and HOA are not interchangeable so it is important to understand what you own and what the association owns. My first instinct is to day that the association owns all common elements and just about everything that is outside of the walls of the condo. However, if you have complete use and control of the limited common area in your fenced in patio, it is completely conceivable that the tree is your responsibility, regardless of the fact that the association has maintained the tree. It is not uncommon for an association to contract that work out and the landscaper/arborist takes care of all trees on within the association. Since the documents appear to be silent on the matter, the next question is who owns the tree? You may wish to consult with an attorney for a legal opinion on the matter. My argument for the tree being your expense is that it is primarily for your enjoyment because it is located in a limited common area only you have access to and can enjoy. The method of informing you: “We were recently informed (verbally, in passing) by the HOA” is entirely incorrect. I am not even sure who told you (an association Board Member or Manager, I assume) but they need to put any such request in writing. Once you have been properly noticed by the association, it is time to either have the tree removed/replaced or push back on the request if you think the association, not you, owns the tree. All the best!