Does HOA have right to trim overhanging branches from neighboring property?
Q: I live in a townhouse association. The owner of the property next to the association has many tree and bush branches hanging over the townhouse association property and perimeter fence. Does the association have the right to trim the trees or bushes which hang over onto the association property? Does the association have to give that adjacent property owner some type of notice before we do it?
A: These tree issues on adjacent properties come up quite a bit. The association has rights and remedies if tree branches or bushes from adjacent private property are encroaching on the association's land and causing a dangerous condition. The association should make a written demand to the neighboring owner to remove branches or trim the bush by a certain date. If the adjacent landowner does not remove the offending tree, branch or bush after the written demand, the association may be able to trim the tree or bush on its own and seek reimbursement from the adjacent landowner.
As an alternative to this “self-help” remedy, if the adjacent landowner fails to comply, the association could file suit to require the owner to trim the encroaching trees or bushes at the tree owner's expense. If a tree branch does fall and damage the association's property, the association should also speak with its insurance agent or broker about whether a claim should be made with the association's insurance carrier. This may also depend on the cost to repair the damage and the amount of the association's insurance deductible.
Q: I live in a common interest community association. For some reason, the developer established two different communities governed by the same declaration of covenants and association. The two communities have separate entrances and are not joined physically at any point. The first subdivision was sold by the builder as privately maintained homes and are charged minimal assessment to maintain the common areas. The second subdivision was advertised as a “maintenance-free community.” Association services provided are snow removal, lawn care and the care of our common areas, which includes fencing and a walking path. Our assessment is triple the amount of the other subdivision. Under Illinois law, is there any possibility we could separate and have our own declaration?
A: It is not uncommon for a developer to bring seemingly different housing styles/portions of a community under the governance of a single declaration. Typically, facilities and infrastructure, such as roads, are shared, making it difficult to split the property into two separate associations.
That said, if the two properties subject to the single declaration have no relationship except that the developer created a single declaration/association, and share no infrastructure, it may be workable to split the property into two separate associations. The key issue here will be what level of owner/mortgagee approval will be needed to do this. This might be addressed in the declaration, and this should be reviewed with association counsel.
Importantly, a title company should be involved early on in the discussion to address what it will require to ensure title to the units in the resulting associations.
There may be other “practical” considerations, like splitting of the operating account and reserve account, and dealing with contracts that currently cover the entire property, that would need to be worked out as well.
• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.