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Gardening Work

Started by JohnP40 • 14 replies • 755 views

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JohnP40 (Illinois)
Posts: 3
Posted:
I live in a condo association with twenty-four units. My condo association’s primary governing document is called the Declaration. It’s forty pages long, and in the thirty years I’ve lived in my association, I may be the only unit owner who’s actually read it.

The Declaration says that the board will provide for lawn care, gardening, and landscaping, to be paid for out of the common treasury. But as a cost-saving measure, the board members have adopted a rule requiring individual unit owners to weed the flower beds closest to their units. If a unit owner fails to do that, the board will hire someone to do the work and then bill the unit owner for the cost, plus a $25 fine.

I’ve tried talking to the board president about this, telling him that I don’t think the rule is legally enforceable, because it’s in conflict with the Declaration. But the president doesn’t believe that the Declaration is a legally enforceable document. He thinks that it’s just a suggestion put forward by the builder, and that the board members can pass whatever rules they wants to.

How should I handle this? I’m in my seventies, not in the best of health, and living on a tight budget. Should I weed the flowerbed? Should I hire someone else to do it? Should I do nothing and let the board send me a bill for the work, plus a $25 fine? Should I pay the bill and the fine? Or should I refuse to pay?
JohnP40 (Illinois)
Posts: 3
Posted:
Correction: whatever rules they want to.
AugustinD
Posts: 5,144
Posted:
It appears you have a board that does not know its legal obligations. What the board should do is raise the assessment to pay for this landscaping. I would write the board a polite letter, explaining that in fact the Declaration contractually binds all owners together, and part of this contract is that the HOA is responsible for maintaining the landscaping, and the cost of landscaping is to be shared jointly by all. Point out that, if the HOA cannot currently afford this landscaping work, the Declaration legally obliges the Board to raise the assessment. Do no work on the flower beds. If and when the HOA starts billing and fining you, write a second letter stating that you are considering legal action in small claims court to enforce the Declaration and ask them to please consult an attorney before continuing with these unlawful fines and billings. Things could get very ugly very quickly, especially since you have ill-informed board members who may think they have a right to retaliate against you in other ways. Expect to be publicly called out at board meetings in a derisive way.

If this is too much, and like you wrote, you can either just acquiesce and pay, or weed the flower bed yourself.

Nationwide HOA boards are commonly inept, just like yours. You are not alone.
KerryL1 (California)
Posts: 14,550
Posted:
Agree with Augustin. Since declarations (aka Covenants, Conditions & Restrictions; CC&Rs) are recorded in public records, proving that might help persuade them that it's a legally binding document, not just a suggestion.

There should be a state seal on it as there is on the CC&Rs for my condo building.
KerryL1 (California)
Posts: 14,550
Posted:
Agree with Augustin. Since declarations (aka Covenants, Conditions & Restrictions; CC&Rs) are recorded in public records, proving that might help persuade them that it's a legally binding document, not just a suggestion.

There should be a state seal on it as there is on the CC&Rs for my condo building.
ArtL1 (Florida)
Posts: 140
Posted:
You're in Illinois...solve this the Chicago way, and put a hit on your board.

But seriously, if that declaration is only a suggestion, what makes them think anything else in the Declarations is binding? Going by that logic, you can all do whatever you want, because the Declarations don't matter.

If you want to teach them a lesson, stop doing your part of their maintenance, refuse to pay, and when they threaten to take this to court or file a lien, point out to the HOA attorney that the Declarations say the association is responsible for that maintenance. Check your local laws/Declarations...it may be that if this ends up in court, the loser pays.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
JohnP40,

I might also add - since your situation is of long standing, I'm assuming the "decision" to govern NOT in accordance with the D, CC&Rs was made a Board meeting. I would obtain the minutes of this Board meeting in order to determine who wanted it changed, how they thought they could do so, etc. This evidence will allow you to compare what occurred with the requirements for modifications in the D, CC&R.

I would then put together the polite letter in a way that traces the beginning of the neighborhood's actions on this topic, through the modifications that were made and how they were made - then show that, given the D, CC&Rs, that what was done was not done correctly - note how your D, CC&Rs show this COULD be done - compare the two scenarios for them. Offer to meet with them to discuss.

I parallel, I would find other like-minded owners who would like to see the current situation returned to the mandated situation - this will also give you an idea of whether or not you want to do this at all - i.e. if everyone except you likes the current "policy" you may find yourself the pariah of the community. If however, you find many others who like the idea of simply paying a fee to have those sorts of chores done (and, who like the idea of it always being done on time and to a community standard).

Your next action is based on what happens when you do the above ... I suspect the Board will stonewall for time, or tell you they know more. It is up to you to prove them wrong and to gather the community around you. If you have community support, attend the next Board meeting. If you have overwhelming support, consult your Bylaws to determine how to do a recall of Board members, or how to call a Special Meeting of the COA.

You have lots of options - just make sure you want to stir the pot - you have to live there.
SheliaH (Indiana)
Posts: 6,964
Posted:
When your community was built, were the flower beds already there? If so, I agree the association has to take care of this - and the homeowners have to pay for it with their assessments.

Then again, your community might be like mine. When they were built, there were no flower beds, but over time people started installing them. The board soon reminded everyone that since the flower beds were installed on the lawn (the common area, therefore association property), they needed written permission from the board to install one. That took care of anyone thinking about installing one, but because there were a number of them already built the board said those could be kept, BUT the homeowner was responsible for taking care of them, like keeping them free of weeds and making sure nothing would grow tall enough to cover the windows. In fact, we recently got a letter from the association reminding people (again) of what they're supposed to do.

If people decided they no longer wanted a flower bed, they'd have to send an exterior change request to the board to get rid of it and then they could remove it and replace the area with grass. There were two flower beds in front of my windows when I moved in (don't know which previous owner put it in) and it had some strange looking plants in it. I couldn't tell if they were plain wildflowers or plain old weeds, so I tossed all of them and planted some daylilies and hostas in there (until the hostas died, then they were replaced by more daylilies). No one's said anything to me before or since

I think your board president needs to be reminded that the declaration is not a set of suggestions - those are legal documents that everyone has to adhere to. The board can adopt rules provided they don't contradict the documents, which in turn cannot contradict or state, federal or local law, If he doesn't believe you, suggest he ask the association attorney.

Once the board determines how the flower beds came about, it can and should adopt rules regarding their upkeep. In your case, if you can't afford to keep up your flower bed, you may need to submit an exterior change request to get rid of it and then pay someone for it. If you want to keep it, now is a good time to consider what type of plants are there. I replaced the stuff in my flower beds with daylilies because they're pretty easy to care for - just keep them watered and mulched. They should also be divided periodically, although I must say I've never done that and the plants have done quite well (although I may replace two because it seems grass is trying to take over and there's no way to get rid of that without hurting the plant). That $25 could go to pay some neighborhood kid or teenager who you might hire to work on the bed once or twice a year and you can pay $25 every time (hopefully that won't break the bank)
people who'd bee thinking about installing new ones. They also grandfathered in the current beds (because several had been built by then), but told everyone they were responsible for taking care of them, especially with the weeding. Otherwise
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
SheliaH (Indiana)
Posts: 6,964
Posted:
Ignore the jibber-jabber at the end, hit send before deleting it!
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JohnP40 (Illinois)
Posts: 3
Posted:
Many thanks for all of your comments and advice. The board members have been ignoring the Declaration for many years. The Declaration calls for four board meetings a year; we’ve been having only one. Minutes are supposed to be sent out after each meeting; minutes haven’t been set out in a decade. Monthly assessments are supposed to be prorated according to the size of the unit; instead, each unit owner pays the same amount. Fortunately, we haven’t had any major disasters, and most unit owners seem content with the way things are.

But a neighbor in my building has told me that last year she was billed $65 for gardening work, plus a $25 fine. She ignored the notice, and the board never followed up. She plans to do the same thing this year, and I think I’ll do that too.
KerryL1 (California)
Posts: 14,550
Posted:
Your decision makes sense, John. The advice coming your way was really good, but It doesn't sound like sound your health is good enough to carry all of it out. Still, perhaps you can get an "official"" copy of your declaration format he county to show the board if need be.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
John,

Choosing the passive do nothing approach will not fix the problem ...the weeds don’t get pulled, the dues don’t increase to get the weeds pulled, and your Board is still in violation of your D,CCRs ...

SheliaH (Indiana)
Posts: 6,964
Posted:
Doing nothing is never a good idea (otherwise why did you post the question?) I think you need (and like minded neighbors) need to confront the board about this. It's one thing to blow off one person, but several?

You said the unit owners seem content about other board conduct or lack thereof (e.g. not sending out board meeting minutes and having them once a year). That's probably why the board felt ok about coming up with this rule - no one's said anything about anything before, so why would they start now?

That's also why this type of behavior will continue until you and your neighbors step in - the board needs to know they're being watched and you expect them to explain the who, what, where, why and how of their decisions. If they can't or won't do that, the community will need to think about voting in people who will.
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
PainintheA
Posts: 77
Posted:
John,

Are you willing to pay an increase in your assessment to pay for the weeding in question?

YOU need to decide whether you are physically capable of some light weeding which you 'could' view as light exercise

OR

pay more in 'dues' for the HOA to hire out the work and perform its' obligations.

Get a copy of the CCRs and Photostat the applicable section.
Send a certified letter to the Registered Agent of the association.
KEEP A COPY
If the letter is returned -> do NOT, repeat NOT, open it - staple the envelope to your copy.
Should the matter end in court, the Judge will open the letter.

The Judge will open the envelope then rule in your favor then 'probably' award you 'costs'.

BEST OF LUCK
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By AugustinD on 07/29/2018 2:29 PM
Nationwide HOA boards are commonly inept, just like yours. You are not alone.

Very true. My CC&Rs also say the association is responsible for all landscaping on the common property. Early on in my HOA (24 years since turnover) the board would contract for mowing and hack-job bush and shrub trimming, but any requests for sod, additional shrubs, planting areas or flower beds near the homes were denied due to lack of funds and an unwillingness to raise assessments to pay for them. Boards gradually adopted - this became standard practice over a decade so finding "the minutes" where this policy was adopted is impossible - a policy that said if a homeowner wanted landscape features or upgrades then it would be approved as long as the homeowner was willing to pay for it and to be responsible for its upkeep. As homes were sold to new owners there was never anything in the CC&Rs that said a new owner was responsible for the landscape improvements a previous owner had paid for and promised to maintain. Eventually everything put in and paid for by individual homeowners in the early years became the responsibility of the HOA as a whole to maintain. All of the improvements were, after all, on the common property.

So now we have a situation where our landscaping costs are rising rapidly and we suspect the maintenance of the custom landscape features is taking up a disproportionate share of the landscapers' time and effort. Those homeowners without special flower beds or raised stone circles around their shrubs or other special snowflake expensive plantings are starting to take notice that they're being asked to pay for special landscaping of the common areas which provides them with no benefits or enjoyment or curb appeal at all.

It's a mess and the possible solutions are obvious but sure to be divisive. And so we shoulder on like boats against the tide, mired in ineptitude and apathy. We're gradually findind newer homeowners who agree that changes need to be made but we're still 3-4 years away from gaining a solid majority on the board that will be able to do the right thing while ignoring the whiners and naysayers of the old guard who think everything is just peachy.

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