AZHOC - Arizona Homeowners Coalition
Voice for homeowner rights and justice.

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Removal of 25+ Yr Old Rubber Tree

Recently, my neighbor and I had a problem with our HOA. We attended a meeting and my neighbor made a comment that the landscapers were not cleaning up leaves in our area which happened to have a beautiful rubber tree in it. The next day the President of the Board was out picking up leaves and subsequently the rubber tree was marked for removal. We both wrote emails saying to please not remove it and were told it was evasive by the Property Manager. I believe she meant to say invasive, but did not correct her.
Do they have the right perform such an uncalled for act. Shouldn’t such an action be part of the meeting minutes of an open meeting? I am very upset. Have lived in complex for 20 years and feel this is a power play. Do not believe situation qualified for an executive meeting. Thank you.

5 Responses

  1. Dennis Legere

    Katheen;
    I can only assume that the rubber tree was on association common property. If you live in an HOA the common property belongs to the association and they have the right to do whatever that believe is appropriate to maintain it. This would include the right to remove a tree.

    This is what they can do but the real issue is what they should do. In a community of neighbors the board should seek advice and make decision about issues like this in open meetings of he board, where the input of homeowners impacted by this decision is actively sought and received. In no way should a management company make any decision to remove a tree. That decision must be made by the board acting as a whole and not by any individual board member. You simply do not replace a 25 year old tree overnight nor make a decision to remove that tree that probably preceded any home in the community.

    Any discussion on this issue in a closed or executive meeting of the board would have violated the Arizona Open Meeting laws for these communities.

    Write or call the board and ask that no decision be made to remove the tree without input from the community. Ask that it be put on the agenda for the next board meeting. Get your neighbors to do the same. Together hopefully you will all be able to work together, review all the facts and impact and make the right decision.

    This is how these communities should be run. With the emphasis on SHOULD.

    Dennis

  2. Kathleen Oehlberg

    Thank you, Dennis. I wish I had found your organization in time for guidance. They removed the tree after we sent emails asking the Board not to. I have since requested meeting minutes
    showing decision and have not had response. I am very disappointed with our board members most of whom I have known for 20 years. It seems any complaints are grounds for a power play decision, with no responses to emails. Since the tree has been removed, is there anything else I can do?

  3. Dennis Legere

    Kathleen;

    Let me apologize for my delay in responding to your initial post, I hope that delay did not affect in any way the results that you mentioned.
    The decision to remove the tree had to be made by the board in an open meeting of the board, for which minutes must be published as a record of that meeting. You should request in writing to see the notice of the meeting and the draft meeting minutes for the board meeting that decided to remove the tree. Since you don’t know when that occurred you cannot request a specific meeting date. It is important to request both because if the meeting was not noticed it was illegal, and the decisions made at that meeting could be overturned. It is also important to specifically request the draft minutes because many associations claim that the minutes are not records until they are approved by the board at the subsequent meeting. This is totally bogus as any record created by the association is a record of the association even a draft or preliminary version.

    Why is this important, will this get your tree back? First it sends the message that the community is watching and paying attention to what is being done, and that this decision was not supported by the community and at the very least needs to be explained why it was done by the board.

    The last part is important to get many people to attend the next board meeting and to collectively ask the board to explain its actions. Please have someone record the meeting on their cell phone or a digital recorder. It is important that this is not just one person because one person is easy to dismiss as simply a disgruntled individual, this has to be a group. it will also help protect you from retaliation if they are so dispositioned. You can expect retaliation attempts from the management company because they stand to lose a lot of money if they are fired, but keep a record of everything that the manager says or writes to you and if they are harassing you show that to the board.

    You will not get your tree back unless you were to sue the board for their actions and force them to replace the tree at their own expense and not the expense of the community. It does not sound to me that you are inclined to pursue such an action. But if you do than please talk to an attorney first.

    Dennis

  4. Kathleen Oehlberg

    Update: It is July 3, 2019 and I have not received a copy of the meeting minutes showing the discussion of the rubber tree removal and the subsequent approval to do so. Our property manager keeps telling me they are not approved yet. I also requested that dying plants be replaced in the same area as the rubber plant, but have had no response since May. Any thoughts?

    1. Dennis Legere

      Kathleen;
      This is where association boards hide behind their attorneys to deny homeowners access to meeting minutes. Under Corporation law the meeting minutes are not a community record until they are approved by the board. Most boards in corporations however approve meeting minutes within days to the board meeting they do not wait for the next board meeting that could be months away to approve the minutes from the last meeting. Corporation boards have no open meeting laws and allow board members to take action without a meeting by phone or email. With a public body like a city counsel they are required to post the draft minutes within 10 days of any meeting. This is where the attorneys get to pick and chose which statutes they advise their boards on.

      If the board truly had an interest in informing the community of the actions they took at meeting they would post draft meeting minutes or at the very least make those available to any member upon request. But many don’t, so they hide behind the fact that HOA and Condo open meeting laws are currently silent on meeting minutes and they take the position around the records request laws by simply stating that draft minutes are not official community records until they are approved by the board. I’ve attempted to change our open meeting laws relative to draft minutes to ensure that they are made available upon request within a reasonable time after any community meeting. I will continue to push for such legislation until we get this clarified and eliminate this loop hole and lame excuse to eliminate transparency in this governance scheme.

      Dennis

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