Plantings off deck with edging

I have lived in this community since 1983 and board member many times. Being very familiar with our docs and by laws, some of the questions posted I find I can answer by your members. My question needs your advice. My rear deck was build and board approved in 1989 the rock edging and annuals off deck about 2 feet added by the assoc. soon after because landscaper was damaging deck with weed wacker. Since then I've kept up both deck & annuals each year, looks very pretty. Never an issue, never a notice of a problem from assoc. Now we have a nazi regime {really the president, other bod just go along}. Whenever a unit owner, questions or comments on anything relating to our community, they receive a letter or notice of some kind. So now we have members afraid to speak out, really very sad. Of course, I also received a notice there was no record my deck and annuals with rock edging were approved (because I dared to question the president's authority}. After pushing our property mgr to search my folder more thoroughly, she found deck approval. The minutes {which would have the addition of rock edging by assoc.} are archived and would cost a fee to pull. There 120 townhomes, 29 have plantings, bushes, flowers, some with rock edging, 2,3,4,5,6 feet or more from their rear patio or deck encroaching into common area. My house is being single out because the president has an axe to grind and I can't show proof with the records archived. Can I show discrimination? Do I have any legal claim of any kind? Oh, yes, I did try to settle this with the BOD at the recent mtg. Like a lot of BOD, they're not familiar with the covenants or the property, and just conceded to the president. Need your advice, thanks.

Tim, Thanks for your comments. As you said, I am not able to view other unit owner files BUT I can ask questions. Of those I spoke with plantings encroaching into common area, none were asked to remove them. Not surprising. As far as keeping your own records, I agree, a little late for that now. Since these annuals and rock edging are some 20 years old, I wonder if there would be a statute of limitations for HOA violations. Fran

There is an section of law called Doctrine of Latches. You will need to consult with a local attorney for more information and applicability.

However, I am of the impression from your posting that the plantings and edging are actually in the common area. If this impression is correct, the Association can remove those plantings and edging at any time since the property is under their control.

Again, I believe it would be easier and cheaper (since attorneys typically charge $300 per hour) to pay the necessary fee to review and copy the minutes that documented the approval for the plantings and rock edging.

Tim

Forgot to add, that unless your Associations governing documents require the BOD meetings to be open, then it would be the option of the Board.

Are you talking about limited common elements or general common elements?

Here is a link to a page from the hoaleader.com website discussing common elements.


This is why I believe the Association and not the Management company should keep the Records. It is the Associations responsibility to ensure that records are kept. If they are having someone else keep them, that fine as Authority can be delegated. However, responsibility still remains with the Association. Whomever was serving on the Board when the management company changed should have also ensured that all records were transferred.

It's possible that some records were not transferred. Therefore, any documentation for changes might have been lost. If this is the case, the current board may be trying to recreate the documentation. You may want to advise them to check minutes of past Board meetings to see if an approval was mentioned in a committee report.

Tim

Thanks Melissa, I appreciate your comments. Yes, there was approval, if fact, the rock edging with annuals was a solution to the landscaper damaging the deck with the weed wacker. The documentation would be archived with the minutes from 89 or 90,if they are there or destroyed from transfer when changing management companies. A lawyer friend suggested I ignore it. They can fine me, though, and then what? With 29 other homes in the complex that have plants, bushes or flowers encroaching off their rear patios or decks into common area 2,3,4,5,6, or more feet, I wonder if they can legally fine me? What do you think? Fran

If you have been served "Notice" of a violation, then request a hearing. Bring pictures of yours - and all other similar landscaped areas that could be termed as a violation.

The board must apply consistent rules to everyone at the same time. So if they choose to take this on, they must take on all other similar "violations."

They DO have the power to correct past violations, but I wonder why this one at this time.

I believe that submitting a copy of the deck approval along with a statement from the past Board member specifying that they recall discussing and approving the edging in a board meeting this should be plenty. Politely point out that the actual approval would be in the minutes of that meeting. Mention that you do not recall the exact date but it would be between x and y.

See what their response is.

Well I'm back. Melissa, Susan & Tim, Recently, I sent an email to our property mgr.(address to the BOD) listing 29 homes with similar landscape areas that could be termed violation by encroaching into common area (actually my area is only 1 or 2 feet at best into common area most other homes are 5 to 10 feet into common area). Also mentioned that approval would be in the '89 0r '90 mtgs. I was very polite. She said she would forward to the BOD. That was one week ago and today I received noticed that I am being fined, first bi monthly,weekly and then daily, pretty hefty. Only comment,"board is not in a position to discuss other units". I guess that means they can discriminate if the president has a grudge against a particular homeowner. I asked some other homes with plantings and edgings off deck or patio if they received any notice to remove them. NO, just me. My question is doesn't the BOD have to apply consistent rules to everyone at the same time? And isn't this illegal. Discriminating at best. Any advise? An attorney friend will send a letter. What should it say? Got some ideas? Thanks, still here, Fran

Here's a thought... Find out if in your state if fines are subject to liens or foreclosure. Read your documentation to see what rights they have to file fines and collect. How much is it per violation or terms of collection? Where do the fines max out at? If they are going to enforce a fine system they have to HAVE a fine system in place. This isn't something that you can just vote on in a meeting. It has to be in writing and given to ALL the owners to recognize.

I am saying this as sometimes fines are used as a fear tactic without actual legal enforcement. It's kind of like when someone threatens to sue. You don't just start jumping through hoops because of that statement. (You shouldn't) You wait and get your ducks in a row to see if they have a case. Then you make sure you have enough evidence on your side to make their case invalid.

My advice may be a bit unorthodix but it shouldn't be ruled out. It is this...simply don't pay the fines. If it can't be used against you as a lien, foreclosure, or lawsuit then how do they collect it? Those are the legal instruments they are allowed to use to collect debts. Since fines aren't exactly debts, then they have no means of enforcement of them. This is what I would consult your attorney about. This information should give them a significant blow to the HOA's ego if this is the case. Selective Enforcement is also a big issue that can be addressed as well.

I would gather proof on the grudge that person has against you, take pictures of your yard issue and others who aren't being fined, and keep all copies of correspondence on hand. Keep a new separate calendar detailing what time you called or they called. Put memos on what the coversation included and who. Also when you write a check mark down in the left memo side what it is payiing. Be it the dues or the fines. This way if you go to court you can show where you paid the fines versus the dues.

Good luck!!!