HOA Community Garden

If this property is off the beaten path and just sitting there, then the board could decide that it be purposed as a community garden. If any homeowner objects, due to vision or people in and out of the area, then that should tell you this is too complicated to do. The board could hold hearings on it to listen to concerns. (I, personally, would not want this next to my property)

If approved, I would determine the number of people who even would be interested in this project.

Divide the land into available plots and let whomever sign up for them.

First, you need to set up a commmitte to oversee this and put some regulations in place (fences? use of fertilizers? arbors? weeding? pathways? harvesting and cleanup?)

The land is open space and unmanaged (not mown). It is directly behind all the units (14). You can hear the tillers and workers in garden & easliy visible. There is a community path along it the all neighborhood uses.

It may have been considered at one point for further condos, so it is a good size area.

By expansion, I mean - We, 2 unit owners and I have been working on the plot for the last 3 years approx. 25 x 25 feet and we have all shared the veggies as equally as possible. We are now discussing dividing this plot into separate individual plots. But we also have a more robust interest in the community garden from several other people totaling 7 in all. So more land would be needed to accomadate them and gardens they may like to establish. AS of right now we do not have anything in writing regarding community garden and how much land is available for it. We have meeting minutes somewhere (from 3 yrs. ago) where owner asked and permission was given by board. Also, no notice is given annually of gardens availablity to all members or described any where as part of the HOA. I feel we can do better in informing the community.

Does that help clarify?

My personal opinion would be that all owners of property should at least be able voice/vote on the issue since Docs say no land partition w/o 2/3 consent.

KP1....here is my take on the situation. If the land is not currently being used for anything then I don't see anything wrong with what you have done per say. Furthermore at this point if there is no plans for the area and the folks participating in the "community garden" want to have individuals plots I don't see any reason to proceed with anything more formal as long as you have the following understanding:

1. their "plot" is year to year based on involvements from other unit owners and could change in size and location.
2. at any given time the HOA can designate a higher purpose for the land and their "plot" could be revoked.

I personally would operate under a handshake agreement and not go any further. However, depending on the demographic of your neighborhood if you feel it is necessary to make it all legal then I would go ahead. People have gotten into peeing matchings over things a lot more trivial than this.

I'd get everything in writing and take the vote if a vote is required by the full membership for a capital gain.

We had a community garden and had rosemary, tomatoes and squash. However, when a new board came in they decided two things: 1. They wanted a lawn. 2. They wanted us to pay for it.

Although the wife of one of the board members was on the board that made the decision, she was the secretary and the president of that board and she conveniently forgot that the board had made that decision. The board could not find the minutes. Luckily we had the newsletter that announced it.

Get everything in writing! It just takes one person to object and things can go really bad really fast.

Hi KP:

I agree with Steve in that the property is “common element” in which all owners are suppose to have equal access, enjoyment, and sharing. Also, when you change a use potentially requires in many instances member vote. Per CO State Statutes the definition states:

(5) "Common elements" means:

(a) In a condominium or cooperative, all portions of the condominium or cooperative other than the units; and

(b) In a planned community, any real estate within a planned community owned or leased by the association, other than a unit.
Now the potential issues you run into is that everyone is suppose to pay equally to maintain the “common elements”; therefore, who is paying for the irrigation, fertilizer, seeds, etc.? I have been racking my brain on this and maybe have an idea for making it potentially equal to an extent:

1. Make sure the insurance will cover volunteers working the community garden. Last thing you want is for someone to be accidentally injured and the HOA sued.

2. Insure the majority of owners agree to the “use” of common area property.

3. Have the entire community garden as an HOA “common element” regarding costs.

4. Most everyone purchases vegetables when they grocery shop and most would prefer fresh; therefore, when vegetables are harvested those who are interested in purchasing can pay a fee to purchase the “fresh” vegetables, and said fee will then go back to the HOA to help defray the expenses regarding the “common elements”.

5. Any of the vegetables harvested and “not purchased” by homeowners” will be divided between any individuals who volunteered their time and efforts to maintain the “common element” by the amount of time provided.

Potentially what this may allow is that the “common element” community garden can pay for itself in the long run because on one side you have those who want fresh vegetables pay a minimal fee vs. those who do not want fresh vegetables having reduced or no cost of maintaining the common property.

Just a thought which you might run past your HOA attorney to insure is feasible idea.

Hi KP:

Do your governing docs just refer to the space as "common area" or do the documents note a specific "use" for the property?

You are most welcome and good luck! Let us know how it goes as it may help others in a similar situation.

KP1, I feel you are on the right track by using existing common land for the benefit of those in your community who want to participate year-by-year. With food costs rising and quality controls on vegetables being questionable, fresh home-grown gardening is certainly preferable. It would be a shame to have available land and not use it.

Please keep us informed concerning details which may be encountered if we would use some of our available land too, such as fences/dividers, water supply, sharing efforts, individual and association costs, seasonal cultivating, monitoring, and record keeping.

Hi KP:

Per your initial two questions with the simple answers:

(a) Can this be applied also to "unit owners (plural)? ,,, YES

(b) Is not the association ALL the members, not the Board? … YES

2. Individuals with disabilities need to have access to all common area elements. To choose otherwise can incur potential legal liability, if an individual takes offense and sues the HOA.

3. Partition in an HOA does not refer to fences it is discussing real property and it primarily would be noted as:

http://legal-dictionary.thefreedictionary.com/partition

Partition statutes allow those who own property in common to sever their interests and take their individual share of the property.

4. The definition under CCIOA:

(19) "Limited common element" means a portion of the common elements allocated by the declaration or by operation of section 38-33.3-202 (1) (b) or (1) (d) for the exclusive use of one or more units but fewer than all of the units.

Therefore, the common area property potentially per your governing documents cannot be utilized for the exclusive use of just a few units and instead must benefit somehow all units.

You might read again the items I posted above in that the ideas possibly allow the garden, yet those who do not participate can benefit potentially with hopefully reduced fees if it can become somewhat self-sufficient.

I don't see where unused land is being re-allocated and could question the implied definition of partitioning and division of land, which could reflect not community usage but permanent and legally-binding "deed stuff." You're not requesting giving the garden away to a local authority or creating some conservation easement. Good inquiry.

However, if residents were disturbed by a garden, I would place it to a vote anyway.

A couple of observations:

1. The negative feedback is worth as much as the positive feedback.

2. The board is within its right, as individual volunteers, to not desire a new amenity that, on the surface, requires daily maintenance from their standpoint. It strains volunteerism to oversee a property and then add to it.

3. A community garden could work well under a responsible Community Garden Board that answers to the board of directors, with the board of directors having complete final decision making authority where warranted. The board of directors represents all property owners and use of land. The garden board represents and manages the garden participants.

4. I would not recommend any formal or informal division of the garden into temporary individual-controlled plots. There's no way all participants will ultimately dedicate the time needed to keep that garden looking top notch and attractive. However, they'd "control" their plot and could allow it to decay. A community approach, with a group dedicated to the whole garden, could prevent this under a harvest sharing model of food distribution.

5. No HOA funding should support the community garden unless every property shares in the harvest regardless of physical contribution to the garden.

6. Your garden is a GCE as access is open to all when the time window for preparation opens in the Spring. Only when work begins and money is collected that the community "investors" limit access, but not conforming it to LCE standards in my opinion.

7. The garden should be easily destroyable by a small bulldozer (Bobcat) or tractor within an hour or two. Easy cleanup if it becomes overwhelming and the ultimate guarantee against creating a permanent eyesore.

A project like this could a tremendously wonderful neighborhood addition or a nightmare. I can't see any in-between scenario.

Should/Can the board make this decision w/o full community input?
Can a community garden operate w/o a garden committee that reports to board?
Can a community garden be a free for all? "There's the land do what ever you want". This is currently the premise we are operating on.
I believe lack of board oversight is a substantial issue in moving forward. If they agree that the land can be used for gardening and designate it as such on their own authority w/o voiced opinion from all owners, it then requires for the board to participate in the garden management in the form of some type of committee. If the board does not want to hassle with it, they can refuse permission to garden. That seems to be it in a nutshell. (I agree with the premise that board can refuse request w/o community input, since it would mean more active roll on their part).
If board says no, to much work on our part to over see, what should happen to the plot that was/is operating now, that board agreed to let homeowner establish 3 years ago?
Another issue: Garden accessability for the physically challenged. Laws that need to be followed?

Thanks for the feedback.