Who is responsible for the trees planted by the developer in a bare land community?

LC writes:

Dear Paul: We are a self-managed small bare land bungalow condo complex with some original spruce trees that were planted by the developer. Our understanding at the time was that the Corporation would be responsible for those trees. Since then we have allowed unit owners to plant their own trees on the sides and the back of their units with the understanding that they would be responsible to maintain them. We are at the point now that we are not clear which trees were planted by the developers and which by the unit owners. Because of the confusion as to which trees were planted by the developer vs the unit owners the Board feels that all trees, whether planted by the developer or previous unit owners should be the unit owner’s responsibility. Some unit owners disagree with the Board. We need a clear understanding as to what is the Corporation’s responsibility and what is the unit owner’s responsibility.

Paul replies:

LC: Depending on your governing documents once the developer (the Declarant) handed over the condo development to the owners that now form your condo corporation, the developer is usually no longer involved. Any trees that the developer planted before the turnover now belong either to the individual unit owners or the corporation. Trees that were planted on the bare land units (the individual properties) are the owner’s responsibility. Any trees that were planted then or since on the common elements are the responsibility of the corporation. Again, I must stress, that given the numerous variations in contractual arrangements it is critical to check your Declaration, Bylaws, and Rules to determine if any exceptions regarding the care and maintenance of the trees exist. If there is no record, even in the minutes, the responsibility is as described above. Best wishes!

Note: In some condo communities the corporation may be responsible for cutting the grass on individual properties either as part of the monthly condo fees or an additional charge. If anyone has such an arrangement, it should include a clause concerning each item (e.g. shrubs, trees, flower beds, etc.) of the remaining landscaping.     

This Post Has 2 Comments

  1. Paul T

    1. Who is responsible if the said tree is directly on the property line. Are both owners equally responsible and must share costs?
    If the tree is on the property line, my first comment is to say that this was poor planning from the onset. Having said this while I am not a lawyer, If both owners want to keep the tree(s) in question, I would suggest that they share the cost associated with its maintenance.

    2. What if one owner wants to remove the said tree but the other owner does not, then what?
    Again, to avoid a major dispute, since both owners currently share the tree, I would suggest that they share the cost of having the tree professionally moved within a reasonable distance (1.5 meters) of the property line onto the property of the owner who wants to keep the tree. This way, both owners will have their wishes met.

    3. What if the new owners were told by the Board, at the time of purchase, that the Corporation is responsible for these trees?
    Unless there is evidence that shows that the Board indicated that the corporation is responsible for the trees, it will remain unclear.

    Other than what I have already suggested, there are three other possible avenues I can think of:
    1- You could use the arbitration provisions under the Condominium Act and have an arbitrator decide; (yes, there is a cost and lawyers might be involved)
    2- Hold a Special Meeting and have all owners vote in writing on whether or not the corporation should assume responsibility for the trees;
    3- Finally, if none of the preceding solutions are acceptable, personally I would suggest that the corporation assume responsibility, and have all the trees that are not clearly on a unit removed.
    I would also advise the Board to consult a lawyer before taking such action in order to avoid additional challenges.

  2. Lorraine Crierie

    I have three questions in relations to the trees on bare land condos.
    1. Who is responsible if said tree is directly on the property line. Are both owners equally responsible and must share costs?
    2. What if one owner wants to remove said tree but the other owner does not, then what?
    3. What if new owners were told by the Board, at the time of purchase, that the Corporation is responsible for these trees?

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