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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 6351
Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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Is a tree that existed at time purchase of apartment building

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Is a tree that existed at time purchase of apartment building converted to condos, in the back yard patio area which is considered part of the common area/exclusive use, also included as ca/eu. even if not so named in the CC&Rs?

Attorney2 :

Hello and thank you for your question.

Attorney2 :

You said this is a condo. Do you own the land where the tree is located?

Attorney2 :

Are you on line with me?

Customer:

It is in our back yard, and was when we took over our unit, when it was still an apartment. We then converted through TORCA to make all 10 units individually owned condos.

Attorney2 :

I understand. You did not own the land when it was an apartment.

Customer:

It's clear our back yard is a common area/exclusive use. But other members and the board (of which I'm president, but outnumbered) are saying we need to take all responsibility for the tree, which now requires some extensive work to be safe and survive.

Customer:

We had three owners who bought one 5-unit building, in '86.

Attorney2 :

No way is it your responsibility. The fact that it was TORCA conversion does not make you responsible for the land.

Customer:

The tree is considered part of the common area/exclusive use, then, even though not specifically named in the CC"&Rs?

Attorney2 :

The laws are very clear that the condo does not own the land that property sits on.

Customer:

Can the board come in, then, and order it removed?

Attorney2 :

\And expect you to pay for removal?

Customer:

They are giving us a choice: they will remove and pay for it (but a second opinion today said the tree is very much alive), or we must assume full responsibility for it from this day forward. I don't think they can do that.

Attorney2 :

No they cannot.

Customer:

WE are having a board meeting tomorrow - any recommendations as to how to present this?

Attorney2 :

The Davis-Stirling Act governs California Condominium Associations. Are you familiar with the Act?

Customer:

A little.

Customer:

I couldn't find a specific reference there to trees on common area grounds.

Attorney2 :

http://www.davis-stirling.com/MainIndex/MaintenanceMenu/tabid/576/Default.aspx#axzz2ZWA1jeGK

Customer:

OK, I'll check that, thanks very much.

Attorney2 :

Hang on I have some more links for you. Do you have a moment?

Customer:

Absolutely, thank you, XXXXX XXXXX has been there for our 27 yrs, making our back yard what it is, we're quite upset at all this. Thank you!

Attorney2 :

"The "separate interest" of a condominium or the "unit" is the air space bounded by the interior unfinished surfaces of the perimeter walls, floors, ceilings, windows, doors. (Civ. Code §1351(l)."http://www.davis-stirling.com/tabid/1471/Default.aspx#axzz2ZWA1jeGK

Customer:

I knew tha.

Customer:

that.

Attorney2 :

Sorry to repeat something you already knew.

Customer:

No, no, I'm just thinking out loud!

Attorney2 :

Oh

Customer:

that will be pretty close.Assume I know nothing.

Attorney2 :

I feel bad that they want to remove a live tree.

Customer:

Yeahhhh.

Customer:

Money vs aesthetics.

Attorney2 :

I would feel worse if they tried to force you to pay for the tree.

Customer:

It's covered with ivy and might not survive, but chances are very good.

Customer:

I think it's a common mistake for HOA to assign responsibility where CA law says there is none.

Attorney2 :

This is the section on tree removal. I hope this helps. http://www.davis-stirling.com/tabid/1898/Default.aspx#axzz2ZWA1jeGK

Attorney2 :

Agreed!

Customer:

Excellent!

Attorney2 :

Let me know how everything works out. Thank you for suing JA!

Customer:

Suing or using? :> }

Attorney2 :

Oops "using" I guess I have lawsuits on the brain....

Attorney2 :

It is an occupational issue

Customer:

Thanks so much for your help. I will let you know.

Customer:

Meeting is Sunday, not tomorrow.

Attorney2 :

I see that in your question.

Customer:

You will now have 1174 positive ratings.

Attorney2 :

Thank you. I think the site numbers are off I have more than they show.

Customer:

Ah, the accounting dept. Thanks again, have a nice weekend, Attorney2.

Attorney2 :

Here is Davis Striling's definition of exclusive use. http://www.davis-stirling.com/tabid/1715/Default.aspx#axzz2ZWA1jeGK

Customer:

Great!!

Attorney2 :

Thank you.

Customer:

I'll just leave this open, in case you think of anything to add, but I will rate in a while.

Attorney2 :

I am finished. You can always come back to the question after rating to ask me any follow up questions that you may have for me.

Attyadvisor and 5 other Real Estate Law Specialists are ready to help you
Thank you.
Customer: replied 3 years ago.

I used another page to ask the follow-up question, hope that was OK.

I am sorry I don't see a follow up question.
Customer: replied 3 years ago.

Arrgghh - don't know what happened to it.


 


Now I know the tree is part of common area/exclusive use, and responsibility of HOA. Cannot legally be foisted off on us.


 


But can a vote be taken (which we would lose) to simply cut the tree down now, at HOA expense, even though a second expert opinion said the tree is most likely, and probably (or possibly not) healthy (but we don't know quite yet)?


 


Do we have any way to stop this because it is in our exclusive use area? We have only one vote.

Are there any tree protection ordinances in your city?
Customer: replied 3 years ago.

Don't know. (Santa Monica - tree friendly.)

I cannot pull up the ordnance. There are trees that are protected. You can contact the city to see if they will intervene with the tree.
Customer: replied 3 years ago.

Would they, on private property? With a dispute between HOA board and resident?

If there is an ordinance they may be willing to help.

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