QUESTION: I live in a planned-unit development of 19 townhouses. Each unit has a private patio and beyond the patio is a small area of land that is common area owned by the association.
Over the years, the owners have "done their own thing" with this small area adjacent to their patios. The association now has a problem with a tree that was planted on the common area 15 years ago by one of the owners.
Now the tree is overgrown and is leaning to one side, making it a possible hazard. Neither the owner who planted the tree nor the association want the tree removed, but trimming is necessary.
The owner who planted the tree is willing to pay for the cost of trimming it. Since it has been on common property all these years, who is responsible for trimming and maintenance of the tree? If the tree falls, would the association be liable for any damage that might occur?
ANSWER: Associations should not allow owners to plant flowers, trees or add other enhancements to the common area. The association has the responsibility to maintain a common area; therefore the association, through the board of directors, should control what is planted or placed in the common area.
I am neither an insurance claims adjuster nor an attorney, but I will give you my common-sense response.
The tree has been there for many years. The association's sprinkler system has probably watered it, the association's gardener has mowed around it, and raked the leaves under it.
I would say that the association is responsible for trimming it, too. Since the tree is on common property that is under association control, any damage caused by falling limbs would probably be the association's liability.
Boards should bear in mind that when an owner wants to plant a tree or present the association with a statue or a bird bath, they should consider all the consequences before allowing this kind of improvement to the common area.
Board Should Budget for Legal Expenses
Q: So many of your answers say that an association board should consult an attorney. Our association does not have enough funds to seek legal advice on every problem that arises.
When I was serving on the board last year, I recommended that the association contact an attorney for advice about the meaning of a clause in the Covenants, Conditions and Restrictions (CC&Rs). The other board members told me I should pay for it myself because there weren't any funds in the budget for legal expenses.
If the majority of the board members don't want to spend the money, what can an individual do?
A: Associations must deal with many legal issues. The board needs to rely on competent legal advice from an attorney who understands the association's legal documents and the numerous federal and state laws that concern community associations.
You can remind the board that they must make sound business decisions and act in the best interests of the association. Some board members feel that they should guard every penny that is spent, do all of the work themselves and make all the decisions themselves.
They lose sight of the fact that they were elected to run a business. Your homeowner association is a business. That means, among other things, that they should plan a budget that includes sufficient funds to be able to get expert help when it is needed, whether it's an attorney for legal advice, a certified public accountant to prepare the tax returns or a roofing consultant or other professional.
If there is a question regarding the meaning or interpretation, then consult an attorney before making a decision that could have unforeseen consequences.
If you are questioned about the wisdom of your decision at a later date, it is comforting to be able to say, "We made this decision with the advice of our legal counsel."
Owner Offers to Redecorate Building
Q: Our condominium lobby and corridors are beginning to look dated because of the dark woods and Spanish decor. The association has enough funds to redecorate. However, the board of directors is very concerned about how we should proceed.
One of the owners is an interior designer. She has volunteered to design and supervise the redecorating work. She insists that she can get the work done at minimum expense for the labor and materials. She will not charge us for her work, but the materials will be ordered through her firm, so she will probably get some profit from the project.
The board's main concern is that the owners will not like the new decor. However, they feel that since she is offering to do the work at minimum cost, they should accept her offer. Can you give us some guidance?
A: The board of directors should ensure that they stay in control of this project.
First, I would suggest that a letter and survey be sent to all the owners to inform them that this project is in the planning stages. The survey could ask for their ideas and for volunteers to serve on the redecorating committee.
Second, the board and the redecorating committee should visit the interior designer's office and see some of her work. Visit other similar projects that she has completed and talk with former clients.
Some associations pay for two or three designers to put together a selection of plans within the association's budget and then the committee makes recommendations to the board of directors for the final decision. Some associations allow the owners to vote on the plans after the committee or the board has narrowed the choice to two or three decorating plans.
With this kind of project, it is impossible to please everyone, especially if you are changing from Spanish decor to something completely different.
Therefore, I recommend open meetings to get acquainted with the designer, discuss the plans and the cost. Later on, all the owners and residents need to be told how the work will be done so that they know when and how they may be inconvenienced by the redecorating.