Who’s responsible for troublesome tree?

Note: This week’s column was written by my law partner, Cynthia Jones, who is licensed in North and South Carolina.

Q: When I bought my South Carolina townhome in 2005, I was told that I would own a certain amount of land surrounding my home, but I have been unable to determine exactly where those property lines are.  I have contacted my county and town offices to no avail.  My dilemma is that there is a tree located 8.5 feet away from the side of my townhome. I trimmed some of the branches that were rubbing against the siding, but then my HOA fined me for “pruning” a tree that is in the common area. What are my rights?

A: There are three issues posed by your question.  First, what property do you own around your town home? The main difference between a townhome and a condominium is that with a townhome, you do actually own the lot that the home is situated on (and the entire structure itself, though the HOA likely handles most of the exterior maintenance).  You should hire a surveyor to survey your home, mark the lot corners, and provide you with a written survey that shows the “footprint” of your town home, the lot boundary lines, and the location of the specific tree that you trimmed, whether on your lot or on adjacent common area. This is the only way to know with certainty what property is yours and what property is common area.

Second, in most cases you can you trim a tree that is located on common area if the branches pose a physical threat to or interfere with the use of your property.  However, I suggest that next time, you send a letter to the owner of the property, whether it’s a neighbor or the HOA, advising that the branches are becoming a problem, and then give them a reasonable time to address it themselves.

Third, in South Carolina, HOAs can only levy fines against owners if there are specific provisions in the Declaration of Covenants, Conditions and Restrictions (or CCRs) that give the HOA board that authority.

If your CCRs do not contain such provisions, then your HOA does not have the authority to levy fines.  Most HOAs that do have fining authority have also established procedures for the owner to be present at a hearing (or the opportunity to be present) before fines can be levied.  In North Carolina, a hearing is required under state law before fines can commence. Review your CCRs to see if they contain the authority (and possibly a process) for the board to levy fines.

This column was originally published in the Charlotte Observer on September 4, 2014.  ©  All rights reserved.

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