Interpretation of HOA covenant

[dk08192019]

What is the name of your state? Georgia

Hello all,

One of the trees in my backyard fell last Thursday morning due to the storm. While removing the fallen tree, I decided to cut down two more trees: one in the left and the other in the right of the fallen tree. The HOA insists that I have to plant some replacement trees after I remove them based on the following sentence in the covenant on page 20. (The full covenant is available from here.)

In addition to, and without limiting the generality of the foregoing provisions of this Article VIII, in the event that the owner of any Lot shall remove any tree or shrub which was located on such Lot at the time such Lot was conveyed by the Declarant to the first owner thereof, such tree or shrub shall be replaced with a tree or shrub of comparable size and character as the tree or shrub which was so removed.

The following (in blue font) is my interpretation of the sentence. Can you please confirm if it is correct? (I am unsure of is the meaning of “thereof” after “the first owner.”)

“Trees to be replaced after removal are those that were on the lot when the developer sold the lot to the "first" owner. That is, the tree must have been planted on the lot before the first sale of the lot was made.”

Assuming my interpretation is correct, it means that to enforce that clause, the HOA needs to prove that the trees in question were on the lot when the first sale of the lot was made. (I highly doubt that the developer planted the trees.)

I believe this covenant was drafted by the developer for HOA created then by the developer in 1994. No wonder such a clause is on the covenant, which I believe is to preserve the original landscape until all homes were sold.

A few relevant definitions from the covenant:

"Association" shall mean the Windrose Homeowners Association, Inc., a Georgia non-profit membership corporation.

It is funny that Windrose Homeowners Association is not the HOA of my current subdivision, Grovehurst.

"Board of Directors" shall mean the Board of Directors of the Association.

Does this mean the current Board of Directors at Grovehurst does not have the power to enforce the covenant because the “Board of Directors” on the covenant means the Board of Directors of the Windrose Homeowners Association, Inc., not Grovehurst?

"Declarant" shall mean Dan McSwain, a Georgia corporation, and shall include any successor or assign of Dan McSwain (other than a person acquiring fewer than five (5) Lots) which was owned by the immediate predecessor-in-title of such successor or assign.

Declarant on the covenant is Dan McSwain, the developer of the Grovehurst subdivision.


Thank you for your responses in advance!
DK

 

[PayrollHRGuy]

Assuming my interpretation is correct, it means that to enforce that clause, the HOA needs to prove that the trees in question were on the lot when the first sale of the lot was made. (I highly doubt that the developer planted the trees.)

I'm sure photos exist to prove that could prove the issue.

Does this mean the current Board of Directors at Grovehurst does not have the power to enforce the covenant because the “Board of Directors” on the covenant means the Board of Directors of the Windrose Homeowners Association, Inc., not Grovehurst?

Probably not.

 

[dk08192019]

I'm sure photos exist to prove that could prove the issue.

Thank you for your response. If there is a photo proving they were indeed the trees that existed before the first sale, I have no problem planting the replacement. The interpretation of the HOA is that ANY trees that are removed have to be replaced, which I argued is incorrect. If my interpretation above is correct, only the trees that existed before the first sales, not ANY trees, are to be replaced after removal. This is what I want to confirm.

 

[dk08192019]

BTW, who has the burden of proof? Do I have to prove that the trees were not on the lot when the first sale was made? Or does the HOA have to prove that the trees were on the lot when the first sale was made? Since the HOA is bringing the case, I guess they have the burden of proof as a plaintiff does in a civil case. Thought?

 

[PayrollHRGuy]

BTW, who has the burden of proof? Do I have to prove that the trees were not on the lot when the first sale was made? Or does the HOA have to prove that the trees were on the lot when the first sale was made? Since the HOA is bringing the case, I guess they have the burden of proof as a plaintiff does in a civil case. Thought?

The entity making the claim would have the burden of proof.

They could also have someone that had first-hand knowledge state the trees were there when the first owner purchased the property.

Let me ask. Do you have some reason to think the trees weren't there when the lot was first sold?

 

[FlyingRon]

The entity making the claim would have the burden of proof.

The entity making the claim in court would have to show proof. Alas much of what an HOA does is outside the court.

 

[adjusterjack]

BTW, who has the burden of proof? Do I have to prove that the trees were not on the lot when the first sale was made? Or does the HOA have to prove that the trees were on the lot when the first sale was made? Since the HOA is bringing the case, I guess they have the burden of proof as a plaintiff does in a civil case. Thought?

"Taxing Matters," an attorney who participates here regularly has written this on Burden of Proof:

In general, the burden of proof does NOT shift. It gets confusing because the term "burden of proof" has been used loosely to cover two types of burdens. The first is the burden of persuasion. In a civil case, that is the burden of the plaintiff to pursuade the fact finder (the jury or judge as the case may be) that he has met the elements of his claim by a preponderance of the evidence, i.e. that his version of the facts is more likely than not the correct version. This burden typically does not shift. It is this burden to which the term burden of proof, used properly, should refer.

The burden of production is the burden of going forward with evidence on a particular issue. Thus, the plaintiff initially has the burden of production to bring forth evidence supporting his claim (i.e. to make a prima facie case). If he does that, then the burden of production will shift to the defendant to bring forth evidence to rebut the claim made by the plaintiff.

In other words, the burden could be on you, the defendant, to refute the plaintiff's "proof."

 

[dk08192019]

They could also have someone that had first-hand knowledge state the trees were there when the first owner purchased the property.

Is that good enough evidence? We are talking about 26 years ago.

Let me ask. Do you have some reason to think the trees weren't there when the lot was first sold?

In this picture, three trees are along the fence nicely. Based on this, I assume it is unlikely that these trees are a natural formation. Then, someone possibly planted these trees. Who? If the developer of the subdivision planted, then they are the trees that I need to replace. However, if they are planted by the first owner, then I don't.

It is possible that the developer planted these trees, but I don't think that is the case. I am not sure when the fence was built, but if it was built by the developer, there is little reason for him to plant trees. Even without the fence, I am not sure if a developer plants trees.

 

[Taxing Matters]

How old were the trees that were removed and can you prove the age? If the age is less than the number of years the HOA (and its predecessor) have been in existence that would make a good case for you that the trees weren't there at the first sale.

 

[paddywakk]

What is the name of your state? Georgia

Hello all,

One of the trees in my backyard fell last Thursday morning due to the storm. While removing the fallen tree, I decided to cut down two more trees: one in the left and the other in the right of the fallen tree. The HOA insists that I have to plant some replacement trees after I remove them based on the following sentence in the covenant on page 20. (The full covenant is available from here.)



The following (in blue font) is my interpretation of the sentence. Can you please confirm if it is correct? (I am unsure of is the meaning of “thereof” after “the first owner.”)

“Trees to be replaced after removal are those that were on the lot when the developer sold the lot to the "first" owner. That is, the tree must have been planted on the lot before the first sale of the lot was made.”

Assuming my interpretation is correct, it means that to enforce that clause, the HOA needs to prove that the trees in question were on the lot when the first sale of the lot was made. (I highly doubt that the developer planted the trees.)

I believe this covenant was drafted by the developer for HOA created then by the developer in 1994. No wonder such a clause is on the covenant, which I believe is to preserve the original landscape until all homes were sold.

A few relevant definitions from the covenant:


It is funny that Windrose Homeowners Association is not the HOA of my current subdivision, Grovehurst.


Does this mean the current Board of Directors at Grovehurst does not have the power to enforce the covenant because the “Board of Directors” on the covenant means the Board of Directors of the Windrose Homeowners Association, Inc., not Grovehurst?


Declarant on the covenant is Dan McSwain, the developer of the Grovehurst subdivision.


Thank you for your responses in advance!
DK

Don't be so sure the developer didn't plant those trees.

My home in a new development will be ready in 2 weeks, and landscaping in the front has already been done by the developer, including three very nice trees.

 

[dk08192019]

How old were the trees that were removed and can you prove the age? If the age is less than the number of years the HOA (and its predecessor) have been in existence that would make a good case for you that the trees weren't there at the first sale.

Very good point! Thank you!

 

[LdiJ]

Don't be so sure the developer didn't plant those trees.

My home in a new development will be ready in 2 weeks, and landscaping in the front has already been done by the developer, including three very nice trees.

That works more in reverse than after the fact. It is possible for a developer to plant trees that are several (or more) years older than the development itself. While the homeowner can do the same, most homeowners would plant saplings as planting older trees can be very expensive. Therefore if a twenty year old tree was cut down, but the development was 25 years old, that is a good argument that the trees were not planted by the developer. (as Taxing Matters already said).

 

[dk08192019]

What happens if neither parties have evidence to back up their claims? I thought that the HOA needs to prove that the trees on the lot at the first sales before instructing me to plant the tree. Am I wrong here?

 

[Zigner]

What happens if neither parties have evidence to back up their claims? I thought that the HOA needs to prove that the trees on the lot at the first sales before instructing me to plant the tree. Am I wrong here?

Absolutely. They can instruct you to plant the tree at any point. If you refuse, then they will need to take further action on the matter. It is during those "further actions" that the need to prove their position will arise. There's nothing stopping them from making a demand first.

 

[FlyingRon]

How old were the trees that were removed and can you prove the age? If the age is less than the number of years the HOA (and its predecessor) have been in existence that would make a good case for you that the trees weren't there at the first sale.

Unless the trees were themselves replacements for trees that were part of the original construction.