HOA refuses to take advice on ‘destructive’ trees, leaving sellers facing a big assessment; how does this affect their sale?

Thanks to our Homeowners Association (HOA) and its management companies, we received a special assessment of $21,800. Since we moved in, my husband has been making suggestions to board members, the HOA managers, gardeners and landscapers that go unheeded. Now, the HOA is making major financial decisions driven by the age, height and weight of destructive trees. Tree roots have lifted many sidewalks, retaining walls, townhouse foundations, patios and fence posts due to an inappropriate tree species in ill-advised locations. The astronomical cost to remove and replace the trees, hardscape, and fix foundations was avoidable. The HOA chose improper trees 30 years ago and planted them too close to hardscape and buildings. Unbelievably, the HOA began replacing these trees with their damaging roots with a likekind troublesome species. Last year, my husband provided each HOA board member with a list of species with the least invasive tree root systems. Specifically, trees with roots that do not creep and lift fences, patios, and hardscaping. The HOA board and its property managers ignored his suggestions. He then proceeded to warn the landscaper, property manager and HOA board members to keep their illadvised choice of trees away from hardscaping. Once again, they disregarded my husband’s advice, claiming root barriers are installed “when needed.” Yesterday, we contacted an arborist held in high regard, used in lawsuits as a court witness and hired as a consultant for several Silicon Valley cities. When the arborist heard the story, the new trees, their placements and the type of root barrier, he laughed and said, “The roots of that tree are way too powerful.” And added, “That tree needs lots of space, not less. The same problems will occur. It’s just a matter of time.”

The HOA board made arrangements with a lender to provide special assessment loans. But in COVID-19 recessionary times, many owners will be unable or willing to pay the assessment or qualify for the loan. Now my husband wants to move, but can

we sell with this financial cloud hovering over our townhouse community? Do we wait until all the work is complete, the special assessments paid or until the pandemic is over? And do we have to disclose what the arborist told us?

It is safe to say that the more than two dozen HOA documents that are required to be passed to prospective HOA homebuyers are not compliant with the Davis-stirling Act.

Make sure you have a professional firm review the HOA documents to clean up the paperwork. (Visit the excellent website www.davis-stirling. com to comprehend the mandated HOA documents that the seller in an HOA must provide.) Turn the pandemic on its head, and make it work for you; Bay Area townhouse prices kept increasing, inventory decreasing, days to sell declining, while demand remains strong. Pay off the special assessment of $21,800 if you can, or in escrow during the closing of the sale. That way, you can offset the financial cloud with a sunny disposition of the special assessment being paid by the seller “for the new owner.” Otherwise, any prospective homebuyers, their personal and professional advisers, their loan officer, and the lender will be scared off.

During The Great Recession, condo sellers hired me to be their seller’s agent in a similar situation. When the referring party described the community, I thought it sounded familiar. It was an old apartment complex that I had temporarily managed as a young man. A developer had purchased the apartment complex, remodeled the interiors and sold them off one-by-one as a condo community with a soon-to-be installed HOA. However, the developer did not touch the roofs, exteriors, fences, balconies, carports, et cetera. These condo sellers mentioned they had paid down the special assessment and would pay off the balance in the escrow process. While waiting for the HOA documents on order, I walked by a glass bulletin board with a bevy of HOA notices and announcements. The word “recall” caught my eye immediately. The HOA members were planning to recall the entire HOA board of directors for creating a $535,000 special assessment toward replacing roofs and siding. The recall was so new it was not in the mandated HOA disclosures. We disclosed the special HOA board recall while boasting of paying off the special assessment. As a result, we received multiple offers.

You are in a much better situation than those condo sellers. Real estate attorneys would want you to describe your phone conversation with the lauded arborist. Full disclosure is a seller’s best friend. The “fog of infatuation” is the homebuyer’s worst enemy. You’ll be paid handsomely in more ways than one to look after “your” homebuyer(s).

Questions? Full-service Realtor Pat Kapowich is a career-long consumer protection advocate and Certified Real Estate Brokerage Manager. 408-2457700 Pat@siliconvalleybroker.com DRE# 00979413 www.silicon Valley Broker.com Youtube.com/patkapowich