Hurricane Protection

Homeowners Associations

Who is going to button down before and clean up after the next hurricane?

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We found out from Irma and Wilma that it is not a good idea to have loose items left outside a home or condominium unit and that the power can be out for many days after the hurricane passes.  The loose items can blow around damaging themselves and other property and food can rot quickly and appliances leak when the power is out for a prolonged period.

If your part time residents have departed for the year and have no one checking on their home, damage can greatly increase from the next storm.  In order to mitigate and minimize such damage, many Associations have now adopted or approved rules and regulations requiring owners to remove all items from their balconies or yards prior to a storm approaching or prior to the owner will be leaving for the summer for a long duration.

Some Associations will even require that the owner designate a “condo or home checker” who will periodically check on the unit over the summer to make sure there are no water leaks and to button down the unit or home before an approaching hurricane.  This could include moving anything not nailed down outside on the balcony or yard to the inside of the building, putting pool furniture in the pool, and deploying hurricane shutters.  The contact information for the checker should be provided to the Association and the checker could be a paid company or local friend or family member.

The checker could also be required to empty out the fridges and freezers before or after the power goes out to prevent rotting food smelling and leaking from the appliances and resulting mold growth from emanating throughout the home or condominium building.

When the storm is rapidly approaching and Southwest Florida is in the cone, there is usually not much time to button down everything.  Usually, there is only a skeleton crew of owners still in residence and limited management personnel (who have not evacuated).  Therefore, it is so important that there are condo checkers (additional resources) still around to do the best they can in securing everything.

If an Association has implemented such home checker and button up rules and an owner fails to secure the home before they leave or engage a checker to do so while they are gone, some association’s rules will charge the owner for damage resulting from their negligent act of not preparing their home for the storm or not cleaning out their appliances after the power goes out.

Another important matter to consider is engaging a landscape or tree trimming company before the storm to be on a priority list to be onsite right after the storm to clear debris and tree limbs expeditiously from the property.  This could be especially important for folks who are around full time and may have mobility issues making it difficult to come and go.  Another priority list that may be good to get on is an inspection and emergency repair list from a superior local roofer.

To alleviate the power outages, there has been a lot of interest in obtaining generators for the condo building or for single family homes.  Sometimes an installed permanent building generator can power the entire building or just the elevators and common area lighting.  We have been hearing of some condo unit owners wanting to use portable gas generators on their balconies.  This would most likely be prohibited as a violation of local fire codes the same as propane grills are not allowed to be used, nor propane tanks stored, less than 10 feet from the multi-family building. An Association should always check with their local fire department prior to allowing any portable generators in or around the buildings.

Hurricane Protection

What you need to know on tree law

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With all of the fallen and leaning trees resulting from Hurricane Irma, a question keeps coming up again and again. My neighbor’s tree limbs are hanging over my property or have fallen onto my property. Can I make the neighbor cut the tree down, cut it up and clean the tree debris off my property? Well usually the answer is no unless the tree is in danger of falling over into your yard.

When it comes to a tree, whose trunk is on a neighbor’s property but whose branches reach over the property line onto your property, the law says you can cut back the branches over your property line as long as you don’t kill the tree in doing so.

There are also county codes as to correct tree trimming methods you must follow to avoid fines. It is best to check with the county before you cut down a tree because many times you will need county permission and the governmental body may require that you plant a replacement tree.

However, if your neighbor’s tree has been compromised from a storm and your neighbor has not staked the tree back up so the tree is in danger of falling onto your property wherein it could damage your property, you may be able to persuade your neighbor to either stabilize the tree or take it down because it is endangering your property for which the neighbor could be liable if the tree falls and damages your property.

Now, if the storm knocked over your neighbor’s tree onto the ground and put lots of branches and even part of the tree trunk on your property, for some reason many homeowners believe that they can force their neighbor to remove “their neighbor’s” tree off your land. This is usually not the case.

You will be responsible for removing all that portion of the tree on your property and your neighbor will have to remove the rest of the tree lying on his property. The neighbor will not be responsible for any tree damage caused to your property as a result of it falling from the storm. A caveat would be if the tree was in ill health or dead before the storm and your neighbor should have removed it when it became unhealthy. You could then argue that the neighbor was negligent in not removing the tree or treating it once it become seriously ill.

The same goes for tree roots of a neighbor’s property, or of a homeowners’ association’s (HOA) common areas growing onto your lot. Many times the roots may uplift your driveway or buckle your pavers. You have the right to cut the roots at your property line, and put in a root barrier to prevent further growth onto your property as long as your cutting does not kill the tree. Otherwise, you will need your neighbor or HOA’s consent to cut up the tree.

We have seen the tree root invasion problem come up in many newer communities because the developer planted the trees (usually oaks) too close to the driveways, sidewalks and roadways. Rather than looking at handling just one tree root problem, these communities are having to deal with hundreds of trees that were planted in bad locations.

For most of these communities, they would rather just remove the trees rather than install root barriers. Usually, if there is sufficient other tree counts in the neighborhood, the county may allow the removal of the ones that are causing problems because of their root growth.

If not, the county may require the planting of sufficient replacement trees. It is important to determine if these trees are in the roadway right of way, easement areas in front of your lot or on your lot to determine who needs to consent for their removal.

If the trunks are located in the roadway right of way or front lot easement areas, they are usually the responsibility of the association to maintain but they sometimes can be the homeowner’s responsibility. However, if the trunks are located on the owner’s lots, the lot owner is usually the responsible party to maintain unless the association maintains the landscaping on all the lots.

Therefore, it is important to determine who is supposed to be maintaining the trees in question before going forth with a removal project. Determining who is responsible for maintaining the health of the trees (trimming, fertilizing etc.) as well as protecting surrounding property from tree root growth can sometime be difficult to ascertain. Usually a thorough review of the association’s governing documents as well as recorded neighborhood plats is required to make sure the tree related responsibilities are put with the correct party; the HOA or the homeowner.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.