Developer hasn't planted trees, and my view is of dirt -- what can I do?

If you were promised landscaping, the developer or HOA has an obligation to provide it.

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Question

I bought a home in a planned community before construction was finished. The developer assured me the common area across the street would be properly landscaped with native plants and trees within a year. It’s been two years now, the developer hasn't planted the promised trees, and my view is of a vacant dirt area. What can I do?

Answer

Since the unfinished lot is what’s known, in community association lingo, as a “common area,” you need to discuss this with your development’s homeowners’ association (HOA).

In most developments, common areas are owned by all the development’s homeowners, and controlled by the HOA. The HOA ideally becomes your representative in a situation like this. It can probably demand that the developer complete the lot, or file a lawsuit against the developer if it fails to complete its landscaping obligations.

To succeed in a claim against the developer, however, the HOA needs evidence showing the developer’s obligations to landscape the lot (such as written plans and specifications). The HOA might do best to hire an experienced real estate attorney to help assess the potential success of a lawsuit against the developer.

There's an added complication if the development is new, however: The developer might still control the HOA. In this situation, you will likely have a hard time convincing it to go after the developer! At such time as a certain percentage of the property in the community is sold to individual owners, control of the HOA will pass on to the owners.) You might need to wait until this transition is complete to get the HOA pursue a claim. (Be warned, however; this transfer can take years.)

Another option is to take action against the developer on your own. If you have evidence that the developer made misrepresentations about the common area lot prior to selling you your home, you might have a basis for a a lawsuit against the developer. Again, however, success depends on showing evidence, (such as a written document or recorded statement) of the misrepresentation. An experienced real estate attorney can help you assess your likelihood of success.

Alternatively, the HOA itself might be obligated to landscape the common area lot. Your development’s governing documents (specifically, its Declaration of Covenants, Conditions, Restrictions and Easements, and any other rules and regulations) might require the HOA to install and maintain common area landscaping.

Review your development’s governing documents, and bring any relevant provisions to the attention of the HOA. If the governing documents obligate the HOA to complete common area landscaping, and the HOA refuses to act, consult with an experienced real estate attorney about potentially filing a legal claim against the HOA.

Keep in mind that lawsuits are time consuming, expensive, and have no guarantee of success. Before you hire an attorney or take any legal action, talk with the developer and the HOA about your concerns. The developer or the HOA might also dislike the unfinished lot (after all, it probably lowers the property values in the community as a whole). Hopefully you can get the landscaping problem fixed, with no need for threats.

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