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Ask Ely Your Own Question
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102506
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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We are in an HOA community. We Applied were granted

Customer Question

We are in an HOA community. We Applied for and were granted permission to install a backyard fence. Near one of the corners of our fence is a tree whose roots have grown and causing damage to our fence. We asked for permission to remove the tree and were denied. The reason given was "the tree was there first". Because of the denial we must remove part of the fence in such a way that will avoid the roots costing us additional expense and is somewhat unsightly. Further, our neighbor installed a fence that abuts our fense and the change we must make to correct our fense damage will require the neighbor to make unnessary adjustments to her fence. Is their denial within th law or can we force them to allow removal of the tree. Our concern is even if we make the adjustment what says the roots won't continue to grow and cause more damage.
Vincent & Betty XXXXXX
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Ely replied 2 years ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
I am sorry about the situation. Can you please tell me:
1) Is your fence entirely on your property?
2) Is the tree on your property, the other's property, or, on both?
3) Is the tree split between your property and that of another owner, or, you and the HOA?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 2 years ago.
1. yes
2. both
3. me and other owner but governed by HOA rules
Expert:  Ely replied 2 years ago.
Thank you.
What do the HOA rules say, specifically?
Can you upload the document?
Customer: replied 2 years ago.
no ability to upload.
Expert:  Ely replied 2 years ago.
I am not sure what you mean by "no ability." If unsure how, see here for instructions.
If rules are not scanned in, then can you tell me the "gist" of the applicable verbiage?
Expert:  Ely replied 2 years ago.
I had not heard from you and I am about to go offline, so I will answer based on the information I do have.
Normally, under common law, the individual has the ultimate right to do whatever is needed on their property, meaning that they can cut the tree to the corner of their property to fit the fence, even if the tree was "there first." One would take reasonable care not to damage the tree on the other's property and to cut it no more than reasonably necessary, but otherwise, that is the rule.
However, if the HOA has a special rule about this kind of situation for owners, be it per bylaws, covenants, or declarations, then it controls. If it gives the tree preference, then the tree cannot be cut into. So the bylaws, covenants, or declarations may override the default common law above.
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