If you live in Windgate II or are considering buying/renting, please be aware of the following situation. A tenant and unit owner have both complained extensively about the association’s trees adjacent to the unit’s deck. These trees drop significant amounts of sap on the deck, as well as branches. Both the tenant and the unit owner have requested that the association remove the tree branches and/or trees, particularly due to the significant risk that sap and falling tree branches pose to small children. The Windgate II association’s attorney sent the following in response:

Date: Jul 18, 2014 3:26 PM
Subject: Windgate II – Tree Concerns

Our firm serves as legal counsel to the Windgate of Arlington, Village II Condominium.  The purpose of this email is to respond to your emails dated July 17th and July 18, 2014 to Ms. Sonia English Johnson.

Please note that since your emails posed several legal questions, the Board of Directors believes that I am best situated to respond to your concerns.  Also, given your prior threats to initiate action of some sort against the Condominium, the Board has asked that you direct your future correspondence or emails on the issue of this tree and your claims for alleged damages to my attention.

As I understand the situation, the deck that is assigned to the unit that you rent is underneath the limbs of one pine tree.  In addition, you have also complained that the double header pine tree nearby should also be removed even though its limbs do not extend over the deck of the unit that you are renting.

As you were advised previously by management and the Board, in an effort to be responsive to your concerns, the Board of Directors asked three independent arborists to assess the condition of the pine trees that are planted on the common areas near the unit that you are renting.   All of these arborists noted that the tree with the limbs that extend over your deck is healthy.  These arborists also noted that their ability to prune this particular tree further is limited as additional pruning would destabilize this tree.

One of the arborists that the Board and Management consultant expressed some concerns as to the future health of the double header pine tree.  Consequently, that tree was removed this past Tuesday, July 15th.  However, as noted above, this tree did not have limbs that extended over the deck of the unit that you are renting. Further, the arborists have no concerns as to the health of this particular tree.

As you witnessed at the July 2014 Board meeting, the Board of Directors has asked several concerned owners to assist them with serving on an ad-hoc committee that will work with management to obtain proposals and bids to replace the double header pine tree that was removed last Tuesday in accordance with the guidance of a certified arborist.    Again, there is no immediate risk that the tree with limbs that extend over your deck is in a state of decline that will necessitate its removal in the immediate future and there are no immediate plans for the removal of this tree.

As for the comments that were made at the July Board meeting about the sap from this tree, I believe you have taken these comments entirely out of context as the sap from this tree is not a hazard and the presence of this tree is not a hazard.  Instead, the legal vernacular for the situation affecting your deck is that the sap is open and obvious and as such you have the legal obligation to mitigate any claims that may result from the presence of sap on your personal belongings.  Snow is also commonly referred to in legal vernacular as an open and obvious condition; however, snow by itself is not a hazard.

As was noted to you in the past and most recently at the July Board meeting, you can mitigate the possible effects of this sap in any number of ways, i.e. by installing an anchored umbrella on your deck and placing covers on items stored on the deck from time.  Based upon your latest email it appears that you are already keeping handy solvents that will allow the sap to be removed from clothing etc.

In regards to your request for clarification of what the covenants say in regards to the common elements, the Board is tasked with maintaining the common elements per Article III, Section 2 of the Bylaws.  However, you should also be aware that Article III, Section 15 of the Bylaws expressly excludes the Condominium from any liability for any damages that originate or flow from the common elements.

This language from Article III, Section 15 of the Bylaws precludes the Condominium from being liable for any damages that relate to the unit that you are currently renting as a result of the tree that overhangs the deck that serves your unit.  This is especially true when you consider that three arborists have confirmed the tree with limbs that extend over your deck is in good health.  Further, the fact that the tree sheds sap is a circumstance that is entirely outside of the control of the Board and is an open and obvious condition that your tasked with mitigating, as needed.

In sum, we dispute your assertion that the tree near your home is hazardous.  The sap from the tree is not a hazard and can be mitigated using the methods suggested above.

Please also note that it is highly unusual for a board to allow a renter to address them at a Board meeting, as attendance at such meetings is open to owners.  You were provided with such access out of respect for your concerns about the pine trees near your home; however, now that these concerns have been addressed at length, the Board may reconsider allowing unit renter participation in future meetings.

Kimberley M. O’Halloran-Perez, Attorney at Law

Rees Broome, PC

Photos from the resident: