Who has to do the maintenance on a residential walkway easement?
mm
Who is responsible to do so on what is a walkway easement?
That is, I've reread the documents in the last week and they seem to
be silent on this, so is it likely to be the HOA, or the individual
townhouse owner for each lot??
Currently the HOA board of directors seems to think the HOA is
responsible, and the HOA has been paying for cautionary tree trimming
and felling. And that's fairly expensive. And there are a lot more
trees still standing or leaning.
Related but different: If the homeowner is responsible, or if the tree
was not on our property at all but on that of the large apartment
building next door, and the HOA has paid to cut down 4 trees, there is
no legal way to get the money back, is there? It's like a gift, is
that right?
I read through all the papers related to my HOA and there are several
references to easements used to walk around behind the townhouses, and
between the buildings, and easements are marked on the plat. All seem
to give rights to residents to use another's property, but none talk
about tree or grass maintenance.
In one area, behind the houses, there are a lot of trees that seem to
be from before the whole neighborhood was built, starting 31 years
ago, when iiuc the whole area was woods. Now they are old and
threatening to fall down.
The president and the board of the HOA have assumed the responsibility
is the HOA's. I don't think anyone has bothered to ask our lawyer,
who only does collections for us now anyhow, because we are short of
money. I was present at a meeting 3 months ago where we voted to pay
for cutting down four of them. I either voted yes or abstained and I
certainly didn't raise this issue because I wasn't concentrating and
afaicr no one said the word "easement". I just took their word that
it was the HOA's responsibility. (I guess if this were a profit-making
corporationg, I'd be subject to a shareholders' suit?) At the last
meeting, they did say "easement", and now I think each homeowner is
responsible for trimming trees on his own property. Only about 25 of
the hundred lots have such big old trees, one of whom is on the board
fwiw.
The closest thing the documents do say is that a tree with a diameter
greater than 8 (6?) inches can't be cut down without permission of the
HOA, but that doesn't specify the easement. It means the whole lot.
And afaict, it also says nothing about duty.
Thanks for reading my post.
Robert Bonomi
An easement gives someone else (other than the owner) a 'right to use',
subject to the terms of the easement.
*IF* the terms of the easement allow the grantee the right to install things
on the property in question, _THOSE_THINGS_ are the responsibility of the
grantee to maintain.
Maintenance of the _underlying_ property is the responsibility of the land-
owner. To the satisfaction of the owner, _not_ the grantee.
>Who is responsible to do so on what is a walkway easement?
>
>That is, I've reread the documents in the last week and they seem to
>be silent on this, so is it likely to be the HOA, or the individual
>townhouse owner for each lot??
Yes. "one of the above." <grin> i.e., "it depends" applies.
>
>Currently the HOA board of directors seems to think the HOA is
>responsible, and the HOA has been paying for cautionary tree trimming
>and felling. And that's fairly expensive. And there are a lot more
>trees still standing or leaning.
Oh, my. You're into an entirely _different_ can of worms, with that with that
There is a _vast_ difference between what the party _must_ do (what they
are responsible for doing), and what they _can_ do (things they _are_allowed_
to, and _choose_ to do, to take full advantage of the rights granted in the
easement).
>
>Related but different: If the homeowner is responsible, or if the tree
>was not on our property at all but on that of the large apartment
>building next door, and the HOA has paid to cut down 4 trees, there is
>no legal way to get the money back, is there? It's like a gift, is
>that right?
The proverbial "it depends" applies. On all the things you _failed_ to state.
Like the jurisdiction -- this varies greatly from state to state, and
possibly by community.
The party who owns the airspace rights into which the tree has 'trespassed'
_can_, on their own authority, remove the trespassing growth. *SUBJECT*TO*
the risk of damaging/killing the _entire_ tree -- for which they would be
liable to the tree's owner.
HOWEVER, the owner of the trespassing tree _is_ liable for any damage that
the tree causes on the other party's property.
>I read through all the papers related to my HOA and there are several
>references to easements used to walk around behind the townhouses, and
>between the buildings, and easements are marked on the plat. All seem
>to give rights to residents to use another's property, but none talk
>about tree or grass maintenance.
As regards an 'easement', the property owner _is_ still responsible for doing
grass mowing -- exactly as if it were his 'private' property without any
easement -- if the area covered by the easement is, say, unpaved. The HOA _can_
choose to mow, to -their- standards, as part of 'enforcing' their easement
rights.
Basically, where the easement runs, the owner _cannot_ "force" the HOA to do
the work for him, but the HOA _can_ do so, *IF* the HOA chooses, and without
taking the owner's opinion on the matter into consideration.
> At the last
>meeting, they did say "easement", and now I think each homeowner is
>responsible for trimming trees on his own property.
*IF* it is a dangerous condition, the property owner is responsible for
abating it. If it just 'looks bad', the owner can choose to 'live with it'.
it is, after all, _his_ property, to do with as he sees fit. Subject to
any restrictions in the HOA agreement. The HOA _may_ have language about
maintaining a 'presentable' appearance, or something like that,
>
>The closest thing the documents do say is that a tree with a diameter
>greater than 8 (6?) inches can't be cut down without permission of the
>HOA, but that doesn't specify the easement. It means the whole lot.
>And afaict, it also says nothing about duty.
Is there any language that prohibits the owner from filling their yard with
junk? Or letting it go unmowed _all_year_? Or anything like that?
You need to _carefully_ read *ALL* the HOA related documents -- the original
charter, and the supplemental documents, _and_ any/all policies that have been
voted in by the general membership at _any_ time since.
You need to look for:
(1) what those things _require_ a property-owner member of the Association
to do.
(2) what those things _forbid a property-owner member of the Association
from doing -- either unconditionally, or a limited prohibition -- e.g.
'without the permission/consent of the HOA.'
(3) what things the HOA _can_ do -- at their option -- on member property.
These may be very _broadly_ written, with lots of potential ambiguity
in interpretation. Language like 'may do whatever is necessary to
maintain ....' is almost a proverbial 'blank check'.
Mike Jacobs
> Who does maintenance on a residential easement? In Maryland.
That's really 2 separate questions commingled: (1) who has the RIGHT
to do such maintenance, if they decide they want to do it for their
own reasons; and (2) who has the DUTY to do such maintenance, if
someone tries to legally force them to do it?
An easement is a form of enforceable property right in someone
_else's_ fee simple property, that permits the easement holder to USE
the portion of the owner's property covered by that easement, for some
specific purpose. It inherently gives the easement holder the RIGHT
to trim trees, remove encroaching buildings, etc. if they are impeding
the purpose of the easement. Thus, your power company can cut
branches that are interfering with their power lines within the power
line easement, and your HOA can cut branches or entire old trees if
(in their sole view, as easement holder) those tottering trees
threaten to fall and interfere with the safety of people making use of
their pathway easement across the property of one or more of the unit
owners.
However, IMO a unit owner can't FORCE the HOA to cut the trees on the
owner's own property; thus, the HOA has no DUTY to do so unless they
take a vote, approve it, and put up the money to do it.
> The closest thing the documents do say is that a tree with a diameter
> greater than 8 (6?) inches can't be cut down without permission of the
> HOA, but that doesn't specify the easement. It means the whole lot.
That's yet a THIRD issue; the unit owner has no RIGHT to remove trees
> 8" dia, even those NOT within the HOA's easement, unless he has
permission from the HOA. That has to do with the HOA's right to
regulate the exterior appearance of the unit owners' lots - one of the
central functions of an HOA - not because of any easement issue.
> And afaict, it also says nothing about duty.
If you are correcto-mundo on that, doesn't that reinforce the default
concept that there is no such duty imposed on an easement holder by
law? OTOH if the papers _did_ by contract impose such a duty on the
HOA, that would supersede the default position of the easement law,
and such a contractual duty _would_ be enforceable.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
mm
<mjaco...@gmail.com> wrote:
>
>
>However, IMO a unit owner can't FORCE the HOA to cut the trees on the
>owner's own property; thus, the HOA has no DUTY to do so unless they
>take a vote, approve it, and put up the money to do it.
In Maryland, if the homeowner is negligent in not cutting down a dead
or dying tree he owns, and it falls and hits his neighbor's house
(these are townhouses), can the HOA be held liable for the damage?
For failure to ...??? For failure to cut the tree down when the
homeowner wouldn't do it; didn't want to do it; didn't have the money
to do it; said he liked the tree, even half dead...?
mm
This is the latest draft of the letter I wanted to mail or email to
the lawyer for my HOA, who now just does collections of delinquent HOA
fees, but who used to give us legal advice. If something I write will
put her in a box, or make it harder for her to correct the situation,
if I'm too assertive or not assertive enough, or I did something else
wrong, or it can be improved, I'd appreciate any advice you can give.
[inside address, etc.]
Re: Responsibility for tree removal
Dear Ms. Xxxx:
I am a resident of the Xxxxx townhouses. The Board of Directors has
adopted a practice
[or should I say policy? We've already paid to cut down 4 or 5 big
trees on the, as-perceived, bad advice from the lawyer, but maybe it's
better not to let on to that.]
of paying to cut down trees that need cutting that are growing on the
walkway easement behind homeowners' houses, especially those who live
next to the Wwwwwwwwww apartment building property. The Board holds
the position that the HOA is responsible and the homeowner is not.
They say they are doing this on your say-so, that you said it is the
responsibility of the HOA to pay for this and not the homeowner.
That you visited the property a few years ago and inspected the area
where the trees grow, and you said it was the HOA's responsibility.
This could turn out to be a major but unwarranted expense for us.
I can't help thinking that someone misunderstood you that day, or you
misunderstood someone. Because, normally, the property owner is
responsible for trimming and/or removing his own trees. I don't see
any reason why it would be different here. The walkway easement
gives residents of the Xxxxx the right to walk on the easement
property, but ownership of the easement property and the duty to
maintain it remains with the owner of the lot and the house on it, is
that not so?
The lot dimensions on the plat include these easements. There is no
dimension on the plat that excludes any easement.
Could you please write to the Xxxxx HOA, care of the president, Ms.
Zzzzz Zzzzzzz, with a copy to me, and perhaps a copy to Yyyyy Yyyyyy,
the property manager, (whose only office is now in Vvvvvv, Md.)
explaining that the homeowner of the lot owns the land on which the
walkway easement exists, and also that he is responsible for the cost
of tree trimming and tree removal, and that he is liable if a tree on
his property is negligently cared for and falls and damages person or
property.
This should not take long. I'm not able to pay you for what little
time it takes, but I think it is your professional responsibility to
correct any legal misimpression that exists after you rendered legal
advice to the Xxxxxx Board of Directors.
Otherwise the HOA will incur expenses it should not incur, based on
what you said.
[Do I need something polite here? Like: "Feel free to email me if you
disagree with where the responsibility lies..." or is this
understood? I really just want her to write the letter, not to email
me in between.]
Sincerely,
...
Mike Jacobs
> On Wed, 30 Sep 2009 06:30:13 -0700 (PDT), Mike Jacobs
> <mjacobs...@gmail.com> wrote:
>
> >However, IMO a unit owner can't FORCE the HOA to cut the trees on the
> >owner's own property; thus, the HOA has no DUTY to do so unless they
> >take a vote, approve it, and put up the money to do it.
>
> In Maryland, if the homeowner is negligent in not cutting down a dead
> or dying tree he owns, and it falls and hits his neighbor's house
Don't take any of the following as specific legal advice, because I
don't know all your facts, but, based solely on the hypothesized LACK
OF DUTY on the part of the HOA to cut trees, the only person with that
duty, for tort purposes, would be the unit owner, who - just like any
property owner whether or not his property is covered by an HOA - is
(and always remains) primarily responsible, as owner, for negligent
maintenance of his own property.
Whether or not failing to cut down a dead or half-dead tree before it
falls legally amounts to "negligence" is a whole separate issue, and
not what I'm talking about, which is limited to whether or not a duty
if care even exists at all as to a certain person (the HOA). Without
the law first imposing a duty on someone to exercise due care as to a
particular circumstance, there is no basis for tort liability being
imposed on that person for failing to do so. In a sense, you see,
duty is the flip side of the liability coin - liability being what the
law imposes for a factual finding that a person failed to carry out a
tort duty, but only after a court finding, as a matter of law, that
there _is_ such a duty.
Maybe, in some circumstances, an HOA _would_ have a tort duty to clear
dead trees, for the benefit of the general public walking by.
Perhaps they assumed such a duty contractually even though the law
would not have imposed such a duty on them simply because they were an
HOA. If this is a real issue and not a "what if" situation, you need
to either (1) CYA by making sure the trees on your _own_ property are
safe, cutting or trimming them as need be, or (2) consult a local
attorney for actual, paid advice after sharing all your confidential
facts with him and answering any additional questions he might have.
> For failure to ...???
Exactly. The first question to ask is, what is the DUTY of the
HOA? If they have none, they can have no liability for failing to
carry it out. If they _do_ have a duty, they can be held liable for
negligently failing in that duty, just like anyone else can be.
>�For failure to cut the tree down when the
> homeowner wouldn't do it;
Take another example. Am I liable for, frex, failing to feed your
pets if you go away for a week and don't ask me to do it? No, I have
no liability because I have no duty. OTOH if you ask me and I agree
and you go away without lining up anybody else to feed your pets in
reliance on my promise to do so, and I still don't do it, THEN there
may be liability for failing to perform the duty I have undertaken.
Or, if I walk by your yard and see your poor penned up dogs on a
tether and voluntarily undertake to feed them, but I give them the rat
poison I had in my shed by mistake instead of dog food, I could also
be liable for improperly performing that duty I had undertaken. But
if I'm simply your neighbor, I have no LEGAL duty to you or your pets
to do anything, even if they (heaven forbid) starve to death.
However, in that circumstance I have a RIGHT to step in if I choose,
and to feed your pets and/or report you to the authorities for animal
neglect - which still does not mean I have any duty to do so, or that
I would be liable to anyone for failing to do so.
> didn't want to do it; didn't have the money
> to do it; said he liked the tree, even half dead...?
Then why wouldn't the OWNER be the one liable, for failing to carry
out his duty as owner? Why should the primarily liable person be
able to palm off his liability onto someone else whose duty, if any,
is only to pick up the ball if and when the owner drops it, and
probably doesn't even have that duty, but merely has the RIGHT to step
in and cut the trees if they choose to do so.
mm
<mjaco...@gmail.com> wrote:
>
>Don't take any of the following as specific legal advice, because I
Thanks. I understand. I never do.
...
> If this is a real issue and not a "what if" situation, you need
>to either (1) CYA by making sure the trees on your _own_ property are
>safe, cutting or trimming them as need be,
On my own property there is only one big tree, and it is sound, and
it's not on the easement area for that matter. My easement areas are
all empty because they are all used for walkways. And they are
outside my fence. In this other area, there is no fence and the trees
were probably there for 30+ years, before the lots were laid out.
> or (2) consult a local
>attorney for actual, paid advice after sharing all your confidential
>facts with him and answering any additional questions he might have.
We actually did pay a lawyer 6 years ago to answer this question, and
she said, according to two people who were there, neither of whom I
consider reliable, that it is the responsibility of the HOA, but they
didn't give a reason. They just got angry when I asked.
According to the same two people, she also told us a couple years ago
that we were not allowed to notify a tenant that his water was going
to be cut off, (because his landlord, the owner, hadn't paid his
homeowner's fees and water bills). Later the story changed to the
exact opposite, that we were REQUIRED to tell the tenant before
turning off his water. (I had already put a note behind his storm
door. Anonmymous because I didn't want the two board members or more
mad at me.) According to them, the lawyer said they weren't allowed
to tell anyone about the debt, but I think she or they were
misapplying the Federal Fair Debt Collection Practices Act, which
doesn't apply to us because we are not a debt collection company, we
are the creditor.
I really don't know if they misunderstood her, she misunderstood them,
or if she made mistakes. Her webpage says nothing about where she
went to school or when she graduated, or where she is admitted to the
bar. It's full of vague claims of experience. She's not in on-line
Martindale-Hubbel.
It really can't be that she misunderstood them, because she surely
wouldn't have just answered Yes or No. Surely she would have written
a paragraph or more saying what the question is and what the answer to
the question is. Or maybe she did just answer verbally and they heard
what they expected they would hear.
I'm writing her an email and hoping she'll correct the misimpression
she's left about the trees. (I posted my latest draft of the letter
elswhere in this thread.)
And for a third incident, a friend tells me that even though the
documents say clearly that no board member can be paid for work he
does for the HOA, the same lawyer said it was okay, right at a board
meeting in front of my friend and everyone there. Maybe because the
amount was small, 10 or 20 dollars a week, but that's still 500 or
1000 a year. The friend, also a board member, stood her ground and
the guy resigned from the board and kept the job.
>Then why wouldn't the OWNER be the one liable, for failing to carry
>out his duty as owner? Why should the primarily liable person be
>able to palm off his liability onto someone else whose duty, if any,
>is only to pick up the ball if and when the owner drops it, and
>probably doesn't even have that duty, but merely has the RIGHT to step
>in and cut the trees if they choose to do so.
That's what I think too. I think the neighbors on the board don't
understand the law at all, think the HOA owns the land when it has is
an easement, don't know what an easement is, even though I tried to
tell them. Or just don't want to think about it. The board is very
polarized, with 3 of us on one side and six who are either on the
president's side or who "don't want to get involved". :)
Mike Jacobs
> I think the neighbors on the board don't
> understand the law at all,
Maybe. Or maybe they understand the facts differently, which would
lead them to a different legal conclusion.
> think the HOA owns the land when it has is
> an easement,
That's not a purely legal question, that's a factual question, or one
of the application of pertinent law to whatever your facts are. I
understand from other posts on this thread that there is still some
uncertainty about whether the operative documents (the HOA covenants,
and the individual unit deeds, and any other papers recorded in land
records) purport to create an easement on the individual owners' land,
_or_ instead set aside a common area owned exclusively by the HOA. If
the HOA _is_ the fee simple owner or exclusive tenant (from the
original developer?) of the walkways and other common areas, then the
HOA _is_ most likely the one responsible for maintaining them in
reasonably safe condition.
> don't know what an easement is, even though I tried to
> tell them. � Or just don't want to think about it.
I think most homeowners have some idea what an easement is. The
power company, telephone company, water & sewer, all have easements
onto their land. People with landlocked neighbors know what a
driveway easement is, running across their land to give the landlocked
neighbor access to a public road. It's not a hard concept.
> �The board is very
> polarized, with 3 of us on one side and six who are either on the
> president's side or who "don't want to get involved". �:)
Well, that internal boardroom politics may be a lot more pertinent to
what is happening than any dispassionately understood legal or factual
issue would be. Welcome to the Mad Hatter's Tea Party.
Don
>
> This is the latest draft of the letter I wanted to mail or email to
> the lawyer for my HOA, who now just does collections of delinquent HOA
> fees, but who used to give us legal advice. If something I write will
> put her in a box, or make it harder for her to correct the situation,
> if I'm too assertive or not assertive enough, or I did something else
> wrong, or it can be improved, I'd appreciate any advice you can give.
If there were a way to condense that letter to a few short sentences
that convey the same information, I suspect it would be more likely to
get results. Someone busy and pressed for time might be inclined to
look at briefly, toss it aside, and say with some annoyance, "I'll take
care of that later," and then possibly forget about it. I know I do
that myself with a lot of communications from banks, credit card
companies, sellers of home maintenance products, and such. I would
probably read them if they were short and to the point.