Interpretation of HOA covenant

[dk08192019]

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

 

[dk08192019]

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.

Good to know. Thank you!

 

[adjusterjack]

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.

There's another possibility. That the trees were there before the subdivision was developed. Assuming that your subdivision is the Grovehurst in Marietta near Roswell Rd, Google Earth Pro shows the presences of a large grove of trees in 1999 before houses were built. It's possible that some trees were removed to make spaces for each house and remaining trees were left standing. I'm guessing that the name Grovehurst is appropriate.

I have no way of posting the aerial view. You'll have to install Google Earth Pro (it's free) on your computer. If I didn't get the correct location, put in your address and you'll see an aerial view of your subdivision. There's an icon on top showing a clock with an arrow. Click on that and you'll see the slide that takes you back in time to earlier aerial views, as far back as the 1990s. You'll be able to zoom in on your lot. If you see trees there before your house was built it would appear that the evidence is in favor of the HOA.

 

[Taxing Matters]

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?

Until it gets to court nobody has to prove anything to the other. The HOA board can proceed on the basis that it believes the trees were there at first sale without having to show any proof to you. You likewise can stand firm that the trees were not there at first and refuse the HOA's directive to replace the trees. What happens from there depends on what powers the HOA has to enforce that provision of the covenant. If it can impose fines for not complying, it may start doing that. That would force you into the position of either letting the fines pile up, agree to replace the trees, or sue the HOA in court. If the only remedy for the HOA is to sue you to get an order of specific performance, then it may be the one to file the court complaint. Who ends up filing the complaint generally sets out who has the burden of proof in the trial, should it get that far. Bear in mind that for most civil cases the plaintiff only needs to prove his/her case with a preponderance of the evidence standard, i.e. prove that it is more likely than not that the facts are as the plaintiff claims them to be. Using a football analogy, the plaintiff just needs to get the nose of the football over the 50 yard line to win. The defendant wins if the ball sits entirely on the plaintiffs side of the field, i.e. the ball is no further than the 50 yard line. In short, it'll come down to which side the judge or jury believes had the slightly better case.

Chances are, though, it won't get to trial. Over 95% of civil cases filed in court get resolved before trial either by pre-trial motions (like a motion to dismiss or summary judgment) or by settlement.

 

[Taxing Matters]

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

But in that case the HOA would need to have something to show that was the case.

 

[Zigner]

But in that case the HOA would need to have something to show that was the case.

You're looking at it from the wrong angle. Such replacement trees would benefit the OP, not the HOA.

 

[Taxing Matters]

You're looking at it from the wrong angle. Such replacement trees would benefit the OP, not the HOA.

No, I don't think so. I think the HOA covenant can fairly be read to mean that trees that replaced the trees there at first sale also need to be replaced to keep the original landscape aesthetic in place. Interpreting it otherwise would not make much sense.

 

[dk08192019]

There's another possibility. That the trees were there before the subdivision was developed. Assuming that your subdivision is the Grovehurst in Marietta near Roswell Rd, Google Earth Pro shows the presences of a large grove of trees in 1999 before houses were built. It's possible that some trees were removed to make spaces for each house and remaining trees were left standing. I'm guessing that the name Grovehurst is appropriate.

I have no way of posting the aerial view. You'll have to install Google Earth Pro (it's free) on your computer. If I didn't get the correct location, put in your address and you'll see an aerial view of your subdivision. There's an icon on top showing a clock with an arrow. Click on that and you'll see the slide that takes you back in time to earlier aerial views, as far back as the 1990s. You'll be able to zoom in on your lot. If you see trees there before your house was built it would appear that the evidence is in favor of the HOA.

What a great idea! I downloaded Google Earth Pro and checked out my home.

I am not sure if I can trust these images from Jan/1999. My house and my neighbor's were first sold in 1995, by when the development of most houses was done. But the satellite image from Jan/1999 shows no houses.

The next available one is from Feb/1999, which can be seen here. It looks like some trees were there, but the resolution is too low to tell clearly. adjusterjack, what do you think?

The next one is from April/2002, which can be seen here. There are trees, but the image is from 2002, more than 6 years after the first sale. They don't look like the trees that were there before the development. I was hoping that the image would prove that the trees were not there at the first sales, but Google Earth does not provide such an image.

 

[PayrollHRGuy]

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

It is if you have nothing better.

 

[dk08192019]

It is if you have nothing better.

I guess I need to find the age of the trees.

 

[PayrollHRGuy]

I guess I need to find the age of the trees.

Are any of the stumps still out there?

 

[Litigator22]

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

It isn't difficult to perceive that circumstances could render the wording, "trees of comparable size" as unconscionable and therefore the mandatory replacement clause unenforceable.

 

[adjusterjack]

The next one is from April/2002, which can be seen here. There are trees, but the image is from 2002, more than 6 years after the first sale. They don't look like the trees that were there before the development.

I agree. The shallow arc and almost identical shape and size of the trees in that row doesn't match the original grove of the pre-house area. Looks like those trees may have been a homeowner's choice like the hedge rows of the next house over which could mean that they were planted after the house was sold for the first time.

Here's a "Hail Mary" for you. Go back through county land records from deed to deed and see if you can locate the first owners of your house. Then ask them about the trees. You can also check county records by parcel to see if any of your neighbors are original owners. It's only 21 years or so. I was in my last house for 22 years I can tell you what everybody on my street did during those years.

 

[dk08192019]

I like to say that I very much appreciate all of your comments. They are very helpful, and I have learned a lot!

 

[dk08192019]

Are any of the stumps still out there?

Yes. The fallen tree has been removed, but the stump is still there. Two neighboring trees are still standing.