WHERE DOES YOUR GARDEN GROW?

IN A CONDO COMMUNITY, WHERE THE BOARD SAYS IT CAN GROW

It’s spring. The snow is gone. Birds are singing and the green thumbs of condominium residents are itching to plant the flowers of which they’ve been dreaming all winter. They will need the board’s permission before they start digging anywhere, however.

That is true not just in common areas, where, with rare exceptions, owners should not be allowed to plant anything, but in limited common areas designated for an owner’s exclusive use, where boards can and should control what gets planted and where.

Pretty roses adjacent to the owner’s fence shouldn’t pose any problems, but bamboo, which can pop up several feet from where it is planted (in the yard next door, for example); English ivy, which spreads quickly, both horizontally and vertically and tends to attract rodents; and poison ivy, which poses other obvious problems, are likely to prove unpopular with the neighbors.

Maintenance – or the lack of it – is another potential concern. An owner’s springtime enthusiasm may fade in the summer, leaving untended flowers to die, allowing weeds to overrun the garden and provoking complaints about the unsightly results.

Licensing/Exclusive Use Easement Agreements

To avoid these problems, boards should require owners to sign a licensing or exclusive use easement specifying that:

• The board must approve what the owners plant;

• The owners must maintain it; and

• The board has the authority to revoke permission and order the removal of plantings at the owners’ expense if they fail to comply with the licensing terms.

The agreement should also require owners to sign a waiver relieving the association of liability for damages related to their gardening efforts. There isn’t a lot of risk here, but nothing is completely risk-free.

Avid gardeners sometimes want to help with – or even take over – landscaping chores in their community. This is not typically a good idea. Liability and safety are the primary concerns. You don’t want volunteers, however skilled they think they are, climbing trees with chain saws to cut branches. But even less dangerous tasks like planting flowers may be problematic, given the likelihood that some owners will almost certainly object to almost anything your volunteer landscapers do.

Boards should encourage these volunteers not by handing them shovels but by putting them on an advisory committee – with the emphasis firmly on ‘advisory.’ The committee can suggest landscaping projects and propose ideas for improving the look of common areas, but the board needs to have the final say on any of these ideas, and it should hire an experienced, appropriately licensed and insured company to do the work.

Community Gardens

Some communities may consider designating space for a common area vegetable garden. This conjures images of happy residents companionably tending neat rows of corn, tomatoes and zucchini. The reality is likely to be angry residents at odds over what gets planted, who is or isn’t doing their share of the maintenance work and how the bounty should be divided.

I typically tell clients that community gardens for all to use aren’t worth the headaches and hassles they create. But boards that want to create one should develop strong and clear rules and policies for its use, affirming the board’s authority to approve what is planted, to revoke permission for the garden if owners violate the rules, and to remove the garden if owners fail to maintain it. Boards should also require participating owners to sign liability waivers and should be sure the association has adequate insurance to cover potential liability claims.

The board’s authority to control what is planted in common areas and limited common areas is clear, but owners don’t always obey association rules. How should the board deal with an owner who decides to ask forgiveness for the garden he has created rather than seek permission for the one he would like to create?

Enforcing the Rules

The board has the authority to remove the garden – or order the owner to remove it – and restore the area to its original condition. That may not be necessary, however. Unless the owner has installed quicksand or the garden equivalent of a boa constrictor – that strangles passersby – you probably aren’t dealing with a health and safety risk.

The primary issues are protecting the board’s authority to establish rules and its need to enforce them consistently. The board can achieve both goals by requiring the owner to obtain retroactive permission for the garden (provided the work done meets the board’s standards for aesthetics and content) and to sign a licensing or exclusive use area agreement governing it. The board can also fine the owner for violating the rules.

Consistent enforcement is essential. If the board allows this owner to skate by without getting permission for his garden, others will undoubtedly follow; and owners who have signed licensing agreements will see little reason to abide by their terms.

Selective enforcement can create other problems. If the board rejects a type of shrub proposed by one owner that other owners have been allowed to plant, the rejected owner may challenge the board’s authority to enforce the rule against anyone. And if the owner is a member of a protected class under the law, the board may find itself defending a Fair Housing discrimination suit.

Consistent enforcement requires vigilance. Boards should inspect their properties periodically to identify landscaping violations and respond quickly to them. One of my clients sent a landscaping violation notice to an owner but it turned out the unapproved garden had been around for more than a year. If the board initiates an enforcement action now, as it is contemplating, the owner can ask reasonably why a garden that wasn’t a problem 18 months ago is a problem now. The board can argue correctly that the owner failed to obtain permission for it. But if this case goes to court – and I hope it won’t – the optics won’t be good for the association.

If you have any questions regarding this issue please contact Justin Magsarili or any MEEB Attorney.