Promises Broken! 175-year-old Water Oak Destroyed Despite Home Sales Contract
In August, 2023, local realtor Liz Kirby piloted the completion of an innovative tool, an addendum to the sales contract, to preserve a huge water oak tree. The owners wished to protect after the sale of their property and the builder who purchased the property initially indicated he would consider designs to preserve this magnificent tree. Despite this, however, he quickly changed direction and the tree was sacrificed in order to expand the house design. The builder claimed that the tree could not be protected during construction and was not in good health. Several arborists declared the tree to be in very good or excellent condition and that construction could occur without removing the tree.
ATAG believes that Arlington County can and should provide better protection for valuable trees in these situations and other cases where Specimen, Historic, or Memorial trees are at risk. This could be accomplished by enforcing existing codes and deed restrictions on land contracts. The County can also increase the fines for such removals and seek more authority from the State to tighten tree regulations.
The following was our initial report when we believed the tree would be saved.
ATAG is proud to have supported this effort and will push to replicate in the future. The sale was accomplished using an addendum to the contract with the builder planning to purchase and renovate the property. The addendum specified that any new construction will be done in consultation with a certified Virginia arborist. Here’s how she accomplished this feat!
The house at 5920 35th St. N was recently sold with a tree preservation addendum for a 175+ year old Champion Water Oak. The tree is included on the county list of notable trees. It was very important to the owners, Patti Teutsch and John Malerich, that the tree would be protected during and after any future construction on the property. They had set up their property as a certified wildlife habit and they did not wish to see it leveled for a Missing Middle Multiplex. Due to the expanded building footprints allowed in Arlington and the continuing loss of tree canopy, they felt preserving the tree as part of a habitat area and for community benefit should be done. Many nearby neighbors were very supportive of this.
Real estate agent Liz Kirby worked closely with lawyers at Northern Virginia Association of Reltors (NVAR) and her broker at AXIS Real Estate, Joel Mack, to come up with the best solution. It was determined that an addendum could be negotiated and added to the sales contract. This is the wording chosen for the addendum:
For the purpose of preservation of the Water Oak, the structure will remain as a single family home and any future construction will be under the guidance of a certified Virginia state arborist of the buyer's choosing.
Every potential buyer that Liz spoke with was informed on the owner's desire to preserve their notable Water Oak. In this transaction, all offers came from builders or investors. The property was sold to a local builder, Scott Prendergast, owner of Apex Homes. He made it known right away that he was an appreciator of trees and after considering his remodeling options he was willing to sign an addendum that would preserve the tree. A method that he employs as part of his building practice is to consider the character of the neighborhood, keep as as many mature plantings as possible, and to update and add on to the house rather than tear down the entire structure. An example of his work using this method was for sale at 4004 N. Tazewell St.
Although the County sets the maximum limits for what can be built on a single family home property, homeowners can implement further restrictions. Sellers can negotiate restrictions with a buyer on the future use of their property, including trees, then write up the agreement as an addendum to a sales contract. The settlement company can add the addendum as an easement to the deed.
Property rights allow property owners to sell in any legal manner. There are many uses for conservation easements or 'covenants that run with the land' available to single family homeowners. These can be added to a deed at any time. Agreements can be made with one or more adjoining landowners. These restrictions can have time limits or be done in perpetuity.
In Arlington a homeowner can file their requirements as a conservation easement or a 'covenant that runs with the land' at the Land Records Division in the Courthouse for less than $50, either in person or by filing electronically. The submitted document should have the wording to be added to your deed, a legal description of your property and the property code which can be found on your title. It must be signed and notarized by the owners. Consulting a real estate attorney first on all possibilities for preserving your land and buildings in full or part may be in the best interests of the owner(s).
If you have any questions or would like more info on this, contact these participants: Liz Kirby: liz_kirby@verizion.net, 301-704-4997; Patti Teutsch: pzteutsch@gmail.com, 571-422-6683; or Scott Prendergast: scott@apexhomesva.com, 703-447-7886