Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: I live in a townhome community and have woods 10 feet from my back lanai. There is a metal fence separating the woods from my patio. The trees/weeds/vines come close to the fence and some trees are over 30 feet high. Some limbs and vines are close to touching my building.
Who is responsible for keeping this jungle cleaned out? It is definitely a safety hazard, e.g., fires from dead brush, wind, and storms causing falling trees. But it will be my insurance who will pay for damages to my building.
This has been an ongoing problem here for eight years. The HOA says the city is responsible, but the city says the HOA is responsible. Who is responsible? Signed, D.M.
Dear D.M.,
While I can’t answer your question outright, I can help you understand the factors that go into evaluating this issue.
As a baseline, remember that property owners are not generally responsible when plants growing on their property extend onto neighboring property, even if those plants damage that property. Instead, you as the property owner are entitled to cut and remove anything that overhangs your property.
The first question then is who owns the property beyond the fence? Is that HOA property, and the fence separates it from your personal lot? Or is that city or country property, and the fence separates the property from the HOA?
You can determine this by checking the plat related to your community, or perhaps looking at the map of your home on the property appraiser records. You might also find the answer by looking at the exhibits to your HOA declaration, which sometimes contain detailed maps showing all the property lines. While the only real, 100% way to know who owns what property is to do a survey, that shouldn’t be necessary in this case.
Let’s assume that this is city or county property. It could very well be that they are saying this is the HOA’s responsibility because they know they have no general legal obligation to trim their own plants; and they also know that the neighboring property owner is responsible for keeping their own lot clear. So, they could be passing the responsibility onto the HOA, assuming that your yard is part of the HOA. You likely can’t rely on the city or county to do this work.
Or instead, this could be HOA property, and the HOA is then effectively taking the same position. The difference is that the HOA covenants may require them to maintain their own property, and failing to maintain the landscaping at all could constitute a breach of that contract, leading to damages if those plants damage your home.
You would need to argue that they have negligently failed to properly maintain the area, and that the lack of maintenance led to the damage. That doesn’t change the fact that you have the right to remove any plants or vines that are extending across your property line (and frankly, you should, as fighting about this later on is far less efficient than simply preventing the damage now); but it would at least give you an additional argument in the event some plants were to damage your home.
Question: Our condo was recently rezoned into a flood zone area. Our association was forced to obtain flood insurance for the entire complex, at a great expense. I just received a letter from my mortgage company that we are no longer in a flood zone. Can the flood insurance be cancelled now that it’s not mandatory? Signed, C.B.
Dear C.B.,
The Condominium Act does not expressly require your condominium to carry flood insurance. It simply says that the association must maintain “adequate property insurance to protect the association, the association property, the common elements, and the condominium property that must be insured by the association …,” and it expressly states that flood insurance is optional.
One significant question, then, is whether the declaration of condominium expressly requires the association to carry flood insurance — many do. If that’s the case, the association should continue to do so despite the rezoning; and unless the declaration were to be amended to remove the requirement.
If the governing documents do not require the association to carry flood insurance, and if you are no longer in a flood zone, then ultimately that’s a business decision for the board. The board could decide that, despite being in a low-risk area, it’s best to carry flood insurance to cover any and all possible damage (and note that the cost of that insurance will likely drop significantly due to the rezoning).
Or it could be that, after consulting with its attorney, the association decides it can drop the insurance, in which event any owners with mortgage companies who disagree will simply have to buy such insurance on their own (as many already do in condominiums across the state).
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to [email protected]. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Townhome owner: Who is responsible for clearing nearby overgrown woods?
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