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Board Must Follow, or Rewrite, Its Rules


QUESTION: I live in a townhome in a community association of 88 homes. We have rules prohibiting door wreaths, but the board of directors is not enforcing the rules.

A new management company recently sent out violation notices to cite the door decorations. The board rescinded the notices and said that they would enforce the rules only if there were complaints.

Several homeowners are paying the association's gardeners to have them plant shrubs and flowers in the common area. The board does not want to upset any of the homeowners, so they are allowing the plants to remain in the common area.

Don't I have the right to expect that the board will enforce the rules?

ANSWER: Yes, the board has a duty to enforce the rules. Obviously, the management company representative was under the impression that the company had a duty to cite the violations. If the board has a procedure that requires that a complaint must be received, then you can file a complaint.

Some boards are very lax about enforcement. They don't want to be the "police" because they fear that their neighbors will dislike them. But this offends the owners who prefer strict enforcement of the rules. If the board does not intend to enforce a particular rule, the rule should be removed from the rules and regulations. As long as the rule exists, the owners have a right to expect that it will be enforced.

In my opinion, it is a mistake to allow individual owners to plant their own shrubs and flowers in the common areas of the complex. The owners simply do not have the right to put their own plants in the common area. The entire common area belongs to every owner. By adding their own plants, these owners are saying, "I'm claiming this portion of the common area and I'm going to plant it the way I want it." This is not an example of respect for one's neighbors or respect for the association's documents.

Here are other reasons that I am against individuals adding their own plants. The association will lose control of the general landscape plan. The landscape plan should take into consideration many issues: the cost of the plants, the amount of water, the amount of maintenance and the type of care that is needed. All of these things affect the association's budget.

When the association's board decides on the types of plants that will be used, everyone should support the plan because the board has the authority to make those kinds of decisions.

However, when individuals add their own plants, soon neighbors will be complaining about the choice of plants or the colors or the size after the shrubs and plants are installed. Who is going to maintain them? Who is going to decide when they need to be fertilized, cultivated and trimmed, and who will pay for the extra care these plants will require? These issues should be considered by any board that is faced with owners who want to add their own flowers, shrubs or trees.

Q: I live in a condominium in a resort area. Very few owners are year-round residents. Some of the board members have served for 15 years or more. They do not give notice of meetings.

I have decided that I will run for the board in the next election. However, with the high percentage of nonresident owners, the board receives a great number of proxies.

I have asked to have a roster of owners distributed, but the board will not allow it. How do I have a chance of being elected? Can I demand a list of the owners?

A: The board does not have the authority to keep you from contacting the other owners. You have the right to obtain a list of the names and addresses of the other owners as long as you are not using the list for improper reasons, like soliciting clients for your business or selling the names to mass marketing advertisers.

To obtain a list of the members and their mailing addresses, write to the board of directors. You must tell them the reason that you are requesting the list. For example, you can state, "I would like the names and addresses of the owners of Happy Acres Assn. for the purpose of contacting my fellow owners regarding the annual election."

According to California Corporations Code, Section 8330, the board has 10 days to respond to your request. It would be very unwise for them to deny your request. They can allow you to photocopy the information at your expense or they can offer an alternative method of allowing you to exercise your right to contact the other owners. The alternative must be a written response from the board.

I recommend that boards establish a written procedure for distribution of the mailing list so that when a request is received, the association is prepared to deal with it in a timely manner. Some associations will mail out notices to the other owners for an individual if the individual agrees to pay for the cost of the mailing. Some associations will provide the mailing labels at the owner's cost.

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