common area modification agreement

Started by AnnS12 • 10 replies • 278 views

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AnnS12 (Wisconsin)
Posts: 67

Posted:

a past president allowed some owners to have concrete pavers installed around plantings and trees. When this was questioned as being common area, he had the owners where the pavers were installed complete a common area modification form which he had notarized and filed at the register of deeds. We no longer allow pavers. Would these agreements be considered amendments to our CCR's or just agreements? One the properties has now been sold and we're not sure the new owner was made aware of this agreement. I cannot find anything in Wisconsin Condo or non-profit law that addresses this. Has anyone had any experience with this type of issue?

ElleN (Idaho)
Posts: 4,420

Posted:

Without a vote of all the owners, these "agreements" are not lawful amendments to the governing documents. Nor are they lawful contracts between the HOA and these owners.

This agreement has no legal force. The Board has the right to remove anything an owner placed on common area.

Wisconsin statutes likely speak of the Board having full control of the common areas and how amendments of the CCRs occur. If you want more information on this, please state the year your condo's declaration was recorded.

I am also concerned that the President acted "ultra vires," meaning without legal authority.

People here have a wealth of experience with situations like this.

AnnS12 (Wisconsin)
Posts: 67

Posted:

our declarations were filed in April 1999. These agreements were filed with the register of deeds in 2016.
The heading on the agreements is "Common area modification agreement". We know he never presented this to the owners to vote on. I believe he just went online and found a blank form and filled it out.
He did this because he gave this group of owners, including himself permission to install the pavers. When other owners started to question and it was agreed the pavers needed to be removed, he made a blanket statement that all past sins are forgiven and had the owners with pavers sign these agreements.

SheliaH (Indiana)
Posts: 6,964

Posted:

Since this involves more than one owner, you may need to send everyone a letter (the entire community) and explain why the previous board(s) were wrong in allowing this. You should cite the entire board because the others had to know this was going on and failed to stop it. It may be helpful for this letter to come from the association attorney.

Before the letter is sent, the board needs to decide if everyone with these pavers will be required to remove them at their expense or grandfather them in, with the condition that they remove them at their expense if the house is sold or transferred. If homeowners are required to remove them, give them until the end of the year to do it. After that the usual violation process will apply, which may include the association removing them and billing the owner or taking legal action.

You may also consult the attorney as to what to do about tbe past president if he's still in the community. I'm sure someone will ask about suing him and before you say "have at it because he did all this on his own," this may or may not put your D & O insurance in play.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By SheliaH on 03/10/2023 5:10 AM
Before the letter is sent, the board needs to decide if everyone with these pavers will be required to remove them at their expense or grandfather them in, with the condition that they remove them at their expense if the house is sold or transferred.

The pavers are on common area.

AnnS12, consider recording something with the county, signed by all the directors and notarized (for good measure), that says these stupid, illegal "modification agreements" violate the covenants and have no force. If anyone wants to go to court over these filings, they can have at it. Send a notice to the community that the covenants prohibit owners from modifying the common area without getting a proper, formal owners' vote.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Just one question: what do the CC&Rs actually say about modifications to the common areas? Do they completely forbid it, or do they say that such modifications must be approved by the board?

If the former, the board has no authority to allow the pavers, even if the entire board agreed. It would require an amendment to the CC&Rs that spell out the details of what sorts of modifications may be allowed and what other hoops the requesting homeowner and the approving board have to jump through.

If the CC&Rs give the board to say yes or no to the pavers, then the only problem I see is the haphazard way the approval was granted and which may make the approval open to challenge.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Would this area be considered "Executive use"? In my former HOA, we had "common area" and then "Executive use" area around the homes. This allowed for personal decor for flowerbeds and their basic "stamp" on their yard. We basically controlled the plain grassy areas and did not allow fences in front yards. I think viewing certain properties you can see a difference between what would be "common" owned by the HOA and areas allowed by "executive use" by the owner. Otherwise everyone would have the same flowers planted in their flower beds etc...

So the question is the area interupt the enjoyment of any members due to it existance in the area it is in? Are the owners enforced to take care of them? The HOA may have the right to enforce the owners to take care of the pavers now instead of it being on the HOA. That is a bonus in my book.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SheliaH on 03/10/2023 5:10 AM
Since this involves more than one owner, you may need to send everyone a letter (the entire community) and explain why the previous board(s) were wrong in allowing this. You should cite the entire board because the others had to know this was going on and failed to stop it. It may be helpful for this letter to come from the association attorney.

Before the letter is sent, the board needs to decide if everyone with these pavers will be required to remove them at their expense or grandfather them in, with the condition that they remove them at their expense if the house is sold or transferred. If homeowners are required to remove them, give them until the end of the year to do it. After that the usual violation process will apply, which may include the association removing them and billing the owner or taking legal action.

You may also consult the attorney as to what to do about tbe past president if he's still in the community. I'm sure someone will ask about suing him and before you say "have at it because he did all this on his own," this may or may not put your D & O insurance in play.

Sound advice.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By MelissaP1 on 03/10/2023 8:07 AM
Would this area be considered "Executive use"? In my former HOA, we had "common area" and then "Executive use" area around the homes. This allowed for personal decor for flowerbeds and their basic "stamp" on their yard. We basically controlled the plain grassy areas and did not allow fences in front yards. I think viewing certain properties you can see a difference between what would be "common" owned by the HOA and areas allowed by "executive use" by the owner. Otherwise everyone would have the same flowers planted in their flower beds etc...

So the question is the area interrupt the enjoyment of any members due to its existence in the area it is in? Are the owners enforced to take care of them? The HOA may have the right to enforce the owners to take care of the pavers now instead of it being on the HOA. That is a bonus in my book.

That's similar to what our community did. In the early early days, people started installing flower beds although the front of the house is considered common area. After some discussion, the board decided to let it go, but homeowners were told they were responsible for keeping it maintained and if they didn't want to do that anymore, they had to file an exterior change request to remove it at their expense as well as replace the area with grass. People without a flower bed had to submit exterior change requests if they wanted one. You have to keep it free of weeds, the plants can't block the windows or have vines that crawl up the side of the house, or be the type that can easily spread (e.g. oregano will do that if you don't plant it in a container). Otherwise, plant what you like. I'm not sure what would be said about vegetables, but I suspect that answer would also be no. I live in a townhouse community and my veggies are in containers on my patio.

One way Ann's community might deal with this is to consider where the concrete pavers are. Do they interfere with the landscaping vendor's work for the community (e.g. broken pavers on the grass might damage lawnmowing equipment or become a really ugly projectile). Those may be the ones that need to be removed sooner rather than later, although I prefer everyone adhere to the same rules (too messy to say he can have his because it's there, but she can't because it's somewhere else).

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By ElleN on 03/09/2023 11:57 AM
Without a vote of all the owners, these "agreements" are not lawful amendments to the governing documents. Nor are they lawful contracts between the HOA and these owners.

This agreement has no legal force. The Board has the right to remove anything an owner placed on common area.

Wisconsin statutes likely speak of the Board having full control of the common areas and how amendments of the CCRs occur. If you want more information on this, please state the year your condo's declaration was recorded.

I am also concerned that the President acted "ultra vires," meaning without legal authority.

People here have a wealth of experience with situations like this.

I agree.

LetA (Nevada)
Posts: 2,679

Posted:

These pavers are deeded to each units individual deed?, Is that correct? You may have a BIG problem.

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