Community Living

Roots of neighbor's tree undermine condo wall

By RICHARD WHITE
© St. Petersburg Times
published April 19, 2003

Question: A four-foot high, masonry-block wall encircles our condominium development. In the yard of the single-family home next door, on the other side of the wall, a big pine tree's roots are lifting the wall. What recourse do we have?

Answer: Notify the owner in writing of the problem. Ask him to work with the association to remove the tree or prune the roots away from the wall. If he refuses, contact your attorney about sending a letter that states if he does not take corrective action, the condominium will prune the tree roots. Do not enter his private property without authorization.

Which rules take precedence?

Question: Our bylaws committee has discovered discrepancies in our documents: The covenants and the bylaws conflict. Which takes precedence?

Answer: Most of the time, you follow the highest order of priority. Federal and state statues and laws come first, then covenants and restrictions, then articles of incorporation, then the bylaws. If you have recorded rules and regulations separate from the covenants and restrictions, they are next. House rules are the lowest order.

There are exceptions. If a lower document or rule is more restrictive or is for the betterment of the consumer/owner, the more restrictive lower requirement may override the higher order. For example, the statutes may require 14 days' notice in advance of a meeting, but the bylaws say 30 days. I recommend following the bylaw requirement for 30 days because then you will be in compliance with both the statute and the bylaws. It's not always easy to tell what has precedence over what; if that's the case, have your attorney issue an opinion as to the correct order of priorities.

Don't risk members' funds

Question: Which investment vehicles are associations using these days for their reserve funds? We used to invest in CDs earning 5 to 6 percent. Now, most of our reserves are in money market funds yielding slightly more than 1 percent. This substantial reduction in interest income has had a direct impact on our total revenues, and we have therefore had to raise our maintenance fees this year. Our board wonders how other associations are dealing with this matter. We don't want to take the risk of investing in corporate bonds. Do we have any options other than waiting for CD rates to rise?

Answer: Your board has taken a wise position in not risking members' funds. The board's duty is not to earn the highest rate of interest. Secure investment instruments are more important. Be cautious and patient; things will change.

- Write to Richard White, c/o Community Living, St. Petersburg Times, P.O. Box 1121, St. Petersburg, FL 33731. Sorry, he can't take phone calls or provide personal replies by mail, but you can e-mail him at CAMquestions@att.net. Please include your name and city. Questions should concern association operations; legal opinions cannot be offered. For specific legal advice, contact an association attorney.

Readers may call the state Division of Condominiums Bureau of Customer Service at toll-free 1-800-226-9101 with questions or requests for materials. Access the Bureau of Condominiums Web site at http://www.state.fl.us/dbpr/lsc/index.shtml; or write to Bureau of Customer Service, 1940 N Monroe St., Northwood Centre, Tallahassee, FL 32399-1032.

Please note that this office provides no information about homeowners' associations. The state has no bureau or department covering those associations.

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