NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
Can anyone tell me where the Conservation Easement falls in the hierarchy of the condo governing documents? Thank you
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hierarchy of COA governing documents
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SheliaH (Indiana)
Posts: 6,964
Posts: 6,964
Posted:
You probably need to speak to a private attorney - and most of us aren't that.
This link defines a conservation easement - https://www.conservationeasement.us/what-is-a-conservation-easement/
Here's another link on the subject - https://www.hoaleader.com/public/What-Your-CondoHOA-Should-Know-About-Creating-Conservation-Easement.cfm This one might get you closer to your answer, but you'll have to read your documents to see what it says.
This link defines a conservation easement - https://www.conservationeasement.us/what-is-a-conservation-easement/
Here's another link on the subject - https://www.hoaleader.com/public/What-Your-CondoHOA-Should-Know-About-Creating-Conservation-Easement.cfm This one might get you closer to your answer, but you'll have to read your documents to see what it says.
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
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 03/13/2024 5:21 PM
Can anyone tell me where the Conservation Easement falls in the hierarchy of the condo governing documents?
Can anyone tell me where the Conservation Easement falls in the hierarchy of the condo governing documents?
A conservation easement is an agreement (sometimes also called, yes, a "covenant") between a landowner (here, the HOA) and another entity (such as a non-profit organization or a government organization). Like the CC&Rs, the Conservation Easement is essentially a contract. Hence in the hierarchy, I place the CE at the same level as the CC&Rs.
If per chance the Conservation Easement conflicts with something in the CC&Rs, then common law (court made and long-established) rules for contract interpretation may kick in.
If you elaborate on whatever conflict there is between the Conservation Easement and the CC&Rs, then this forum might be able to give more direction. Maybe there actually is no conflict?
NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
Thank you for all your responses. The Conservation Easement states that the 15" around each condo unit is for the exclusive use of the owner but one of their auditors said owner can do whatever they want in that 15" area. Now our Declaration says all improvements, including plantings need to go through the submission process and that all plantings must be native.
The previous Board told all the unit owners what the Easement auditor said rather than telling them what the Declaration says. I am now on the Board and I'm not so sure all of us have this freedom to do whatever we want in this limited area. Thoughts?
The previous Board told all the unit owners what the Easement auditor said rather than telling them what the Declaration says. I am now on the Board and I'm not so sure all of us have this freedom to do whatever we want in this limited area. Thoughts?
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
Quote:
Posted By NancyD5 on 03/13/2024 7:20 PM
Thank you for all your responses. The Conservation Easement states that the 15" around each condo unit is for the exclusive use of the owner but one of their auditors said owner can do whatever they want in that 15" area. Now our Declaration says all improvements, including plantings need to go through the submission process and that all plantings must be native.
The previous Board told all the unit owners what the Easement auditor said rather than telling them what the Declaration says. I am now on the Board and I'm not so sure all of us have this freedom to do whatever we want in this limited area.
Thank you for all your responses. The Conservation Easement states that the 15" around each condo unit is for the exclusive use of the owner but one of their auditors said owner can do whatever they want in that 15" area. Now our Declaration says all improvements, including plantings need to go through the submission process and that all plantings must be native.
The previous Board told all the unit owners what the Easement auditor said rather than telling them what the Declaration says. I am now on the Board and I'm not so sure all of us have this freedom to do whatever we want in this limited area.
I agree with you. Owners are limited by the Declaration here.
Long Answer
The rules of contract (and statute) interpretation say that, when possible, interpret contracts (or statutes) so that all terms of the contracts (or statutes) are satisfied.
Below I call the Conservation Easement "the Agreement." Why? Because this is what an easement is: An agreement.
The Agreement and the CC&Rs are not in conflict (in the eyes of the law). This is because the HOA has an Agreement with a third party (a non profit organization or government organization). The Agreement says that owners can do whatever they want within 15 feet of each condo unit. But this region (within 15 feet of each unit) is also legally subject to the covenants in the Declaration. The Declaration's covenants say 'all improvements, including plantings, need to go through the [ARC application?] process, and that all plantings must be native.' This means that owners who go through the ARC application process; are approved; and use only native plantings, will be in compliance with both the Conservation Easement and the Declaration.
In my opinion the previous board grossly misunderstood the auditor's meaning. What the auditor meant was, "the nonprofit/government organization does not care what owners do within 15 feet of their homes. If owners have a contract with someone else about this 15 feet, then that's the business of the owners and the other party (here, the HOA). But as the present Easement auditor, neither I nor the nonprofit/government organization have any lawful control over this 15 feet."
It's the same idea as a city ordinance requiring that all fences must be at least five four feet high, but a HOA's covenants require fences that are at least six feet high. Is there a genuine conflict (meaning a conflict in the eyes of the courts)? No. Why? Because fences at least six feet high comply with both the city ordinance and the covenants.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
Quote:
Posted By ElleN on 03/13/2024 7:48 PM
It's the same idea as a city ordinance requiring that all fences must be at least five four feet high
It's the same idea as a city ordinance requiring that all fences must be at least five four feet high
NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
Thank you so much for this explanation. I totally have a clearer understanding of this situation and it finally makes sense now! I have a feeling that I'm not going to be very well liked after opening up this can of worms. I knew the previous Board wanted to have the freedom to do what they wanted so I always suspected they went with what the auditor said and never took the Declaration into consideration. I have no idea how to proceed now when members will continue doing what they want as they were told previously. I think this is going to turn into an ugly situation if I bring this up. Oh boy! Thank you again for your thoughts. They helped me alot.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
NancyD5, now I am going to mess up your evening. If owners have been doing things within 15 feet of their units, that violate the CC&Rs for many years, or if the board gave approval to things that violate the covenants and the owner spent a lot of money, say, landscaping this region, all the while relying on the board's approval, then this is a problem. If you want elaboration, ask.
NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
Yes that's exactly what has been happening the last 10 or more years . Please elaborate.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
-- If enough people have violated the 15-foot covenant; enough years have gone by with all these violations happening; and any reasonable person driving around the grounds would see so many homes in violation that they would think there is no restriction on this 15-feet, then a court could rule that the covenant restricting plantings is legally "abandoned" and so no longer enforceable.
-- I am not clear on whether Wisconsin has a clear statute of limitations for enforcing covenants.
-- I keep in mind that so much time has passed that some owners may have bought on the assumption they could do whatever they want in their 15 feet. This is a big deal.
-- For anyone who relied on the prior board's approval and spent a lot of money landscaping, case law tends to say that the HOA, not the owner, must pay to put the 15 foot region either back the way it was or preferably (IMO) to a way that is acceptable to the owner and in compliance with the covenants. Is this all-volunteer board willing to deal with these situations, case by case?
-- For anyone who did not spend a lot of money but relied on the board's approval to violate the covenants, the board could start enforcing the covenants right now. It depends on how much of a kerfuffle the board wants to cause. I would not want to get into litigation over this, if at all possible.
-- The carrot is better than the stick. If a board majority agrees, consider offering "amnesty" to owners, stating the board will pay for ____ (to get the 15-foot in compliance with the covenants). For those owners who do not agree, consider issuing violation notices that say, "While the board will not fine this home (assuming fines are allowed), the board will record this violation in the lot's file, and the violation must be remedied prior to sale."
-- If I were on this board, how I would vote on this in the coming weeks and months would depend on whether home appearances have become problematic. It's very hard to judge this situation.
-- Going forward the board should enforce the covenant as written, per my earlier post. IOW going forward, no, owners //cannot// do whatever they want in this 15-foot region.
-- I am not clear on whether Wisconsin has a clear statute of limitations for enforcing covenants.
-- I keep in mind that so much time has passed that some owners may have bought on the assumption they could do whatever they want in their 15 feet. This is a big deal.
-- For anyone who relied on the prior board's approval and spent a lot of money landscaping, case law tends to say that the HOA, not the owner, must pay to put the 15 foot region either back the way it was or preferably (IMO) to a way that is acceptable to the owner and in compliance with the covenants. Is this all-volunteer board willing to deal with these situations, case by case?
-- For anyone who did not spend a lot of money but relied on the board's approval to violate the covenants, the board could start enforcing the covenants right now. It depends on how much of a kerfuffle the board wants to cause. I would not want to get into litigation over this, if at all possible.
-- The carrot is better than the stick. If a board majority agrees, consider offering "amnesty" to owners, stating the board will pay for ____ (to get the 15-foot in compliance with the covenants). For those owners who do not agree, consider issuing violation notices that say, "While the board will not fine this home (assuming fines are allowed), the board will record this violation in the lot's file, and the violation must be remedied prior to sale."
-- If I were on this board, how I would vote on this in the coming weeks and months would depend on whether home appearances have become problematic. It's very hard to judge this situation.
-- Going forward the board should enforce the covenant as written, per my earlier post. IOW going forward, no, owners //cannot// do whatever they want in this 15-foot region.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
Quote:
Posted By ElleN on 03/13/2024 8:58 PM
-- Going forward the board should enforce the covenant as written, per my earlier post. IOW going forward, no, owners //cannot// do whatever they want in this 15-foot region.
-- Going forward the board should enforce the covenant as written, per my earlier post. IOW going forward, no, owners //cannot// do whatever they want in this 15-foot region.
NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
ElleN, first let me start by thanking you for all your time in trying to help me with this. I understand completely that you are not attorneys on here but there are some basic condo laws you have a better general understanding of than I do and I appreciate your thoughts. I'm now feeling like I oughta get out of this mess before I become liable for something! Btw, I am the Secretary/Treasurer
Let me give you a little history. This is a single family home condo development. Building started in 2006. People bought the right to build on a lot and then decided on which home they wanted from a list. 10 units were built by the end of 2008. All of us original owners were green as far as condo living and took over the Association from the builder after 2007. Building stopped due to the economy and the remaining unbuilt lots were sold to a different builder who just started building the other 10 units in past 5-6 years.
I am part of the first 10 unit owners. Members didn't understand the documents and we were told by the builder we could do whatever we wanted in the 15' around our units. In fact we were even never told about the Conservation Easement until 1 year after we all lived here. At first no one was landscaping in the 15' limited common area because condos came with bushes in the front of each unit. At one point someone wanted to landscape in that area and the Board then went to the documents to know how to do this submission process. Once reading that info there was a split between members who believed we could only have native plants in those areas and those, including the Board, who so badly wanted to stay with what the builder said and wouldn't accept the only native idea. The Board then went to the Conservation Easement people who told them what the wanted to hear by saying that they don't care what we do in that area. I clearly read in the Conservation Easement that the 15' is for each unit owners use, pursuant to the Declaration but I wasn't taken seriously. The Board and the majority of people swore by what the auditor said and so that is why everyone has been approved to plant whatever they want. Some have been doing it since 2011 and the 10 newer owners have been doing it since they built in the last few years. Basically the 10 new owners were told by our Board members that they could do whatever they wanted when they were considering buying out here.
I do not want to do anything that I personally could be sued for, so I'm fearful of remaining on the Board and I don't want to let down the other Board members. There were no other members who wanted to do this job. So if I approve what has always been approved which is against the Declaration I can be in legal trouble and if I don't approve their landscaping submission then the anger of all these people is going to be heaped on me. Members are going to be furious! Can I keep myself safe if I tell the other two Board members that I don't want to be part of the submission process?
Let me give you a little history. This is a single family home condo development. Building started in 2006. People bought the right to build on a lot and then decided on which home they wanted from a list. 10 units were built by the end of 2008. All of us original owners were green as far as condo living and took over the Association from the builder after 2007. Building stopped due to the economy and the remaining unbuilt lots were sold to a different builder who just started building the other 10 units in past 5-6 years.
I am part of the first 10 unit owners. Members didn't understand the documents and we were told by the builder we could do whatever we wanted in the 15' around our units. In fact we were even never told about the Conservation Easement until 1 year after we all lived here. At first no one was landscaping in the 15' limited common area because condos came with bushes in the front of each unit. At one point someone wanted to landscape in that area and the Board then went to the documents to know how to do this submission process. Once reading that info there was a split between members who believed we could only have native plants in those areas and those, including the Board, who so badly wanted to stay with what the builder said and wouldn't accept the only native idea. The Board then went to the Conservation Easement people who told them what the wanted to hear by saying that they don't care what we do in that area. I clearly read in the Conservation Easement that the 15' is for each unit owners use, pursuant to the Declaration but I wasn't taken seriously. The Board and the majority of people swore by what the auditor said and so that is why everyone has been approved to plant whatever they want. Some have been doing it since 2011 and the 10 newer owners have been doing it since they built in the last few years. Basically the 10 new owners were told by our Board members that they could do whatever they wanted when they were considering buying out here.
I do not want to do anything that I personally could be sued for, so I'm fearful of remaining on the Board and I don't want to let down the other Board members. There were no other members who wanted to do this job. So if I approve what has always been approved which is against the Declaration I can be in legal trouble and if I don't approve their landscaping submission then the anger of all these people is going to be heaped on me. Members are going to be furious! Can I keep myself safe if I tell the other two Board members that I don't want to be part of the submission process?
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
I may have missed this, Nancy, but your Board will approve seeking your HOA attorney's advice on this important topic, right?
This way, based on th attorney's professional opinion, you should be able to protect yourself from liability, and also protect your corporation. In addition, no owners should get mad at your if you follow an actual expert's advice.
This way, based on th attorney's professional opinion, you should be able to protect yourself from liability, and also protect your corporation. In addition, no owners should get mad at your if you follow an actual expert's advice.
NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
I'm not sure the 2 other Board members will see this as an important topic to seek legal advice on since they have done extensive landscaping the last couple of years and this might not sit well with them. They and all other members will be very angry I even questioned the way things have been done even though I was protecting myself and the Association by doing things per the documents. They want what they want and don't care much for what is legal. I know it's a smoking gun and it will take only one unhappy member to start the ball rolling in the courts once they get mad enough.
We already have 1 member who did something not allowed in the common area and when the Conservation Easement auditor saw it he said it had to go. The problem is that the Board approved of her $5000.00 mistake! The next Board, who were the ones who spoke with the auditor, told her she take to remove the violation at her own costs and replace the natural greenery that was in that area before she moves out. Mind you, our Declaration says that violations have to be corrected within 45 days. She is being nice at this point and not fighting back in any way but that may not last.
I guess I need to think about how to approach this with the other board members as you suggest.
We already have 1 member who did something not allowed in the common area and when the Conservation Easement auditor saw it he said it had to go. The problem is that the Board approved of her $5000.00 mistake! The next Board, who were the ones who spoke with the auditor, told her she take to remove the violation at her own costs and replace the natural greenery that was in that area before she moves out. Mind you, our Declaration says that violations have to be corrected within 45 days. She is being nice at this point and not fighting back in any way but that may not last.
I guess I need to think about how to approach this with the other board members as you suggest.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
NancyD5, thank you for sharing more background. It helps a great deal.
Summary of the situation: The HOA has people who may have spent a lot of money on landscaping, relying on what the board told them. The HOA may have people who paid extra for the home because of the present landscaping. The HOA may have people who bought a home with negligible landscaping but with big ideas in mind, that they then implemented. The money spent here, while relying on what past boards said, is a big deal, in my experience.
My sense is there is now a hodgepodge of landscaping within the 15 feet of each home, with quite a few homes perhaps being technically in violation of the covenants but quite possibly not legally in violation of the covenants. That is, a court might very well say the covenant on the 15 foot area is now abandoned. Or Wisconsin might have a statute of limitations, prohibiting covenant enforcement if an obvious violation existed for so many years. E.g. in some states, the limit is five years.
For several reasons, my opinion is this cannot be untangled in any perfectly rational way. And the latter reality is no big deal. To be a good leader, I believe accepting this is important. Messiness like this happens a lot in HOAs after say 15 or so years pass. Volunteer boards cannot be expected to get things perfectly right. Nor can HOA attorneys. (Some HOA attorneys are in fact terrible.)
What is important is that the place thrive as a nice HOA where people want to live and the covenants are respected as much as reasonably possible. Can the board still make a decision here that allows the HOA to continue to thrive? Sure.
At this point I am not sure why the HOA has an approval process for this 15-feet, but you seem to be saying it does. Is this so? If an approval process does exist, then this is probably a good thing. If you quote here any architectural guidelines from the Declaration or otherwise presently in place, this would be helpful.
Some options, thrown together:
1.
The board could always take direction from the HOA attorney. But there are no guarantees what the HOA attorney advises will insulate anyone there from a lawsuit. Being on a board always risks being named as a defendant in a lawsuit. I think a director has to become comfortable with this possibility or else decide not to serve. On the other hand, it is rare that directors are named in lawsuits. This forum talks about directors being named as defendant now and then but this is because the forum naturally tends to attract those who want to solve a problem. A "problem" often translates to there being some kind of difference in viewpoints. Where there is a problem, a lawsuit is more likely. I happen to feel you all could skip the attorney, because there is no perfect "solution" here. Plus your HOA needs an attorney with //wisdom//. They are out there, but it's a bit of a roll of the dice, in my specific experience.
2.
Tell the Board that the approval process is not clear to you, and ask if it is okay with the board if you do not participate in it. I do not think this actually protects you from anything, but if you think otherwise, I understand. Some here will say each director has a duty to participate in all votes (unless there is a conflict of interest). I disagree. Directors have a right to abstain on occasion. This //is// still participation IMO. And it is ethical.
3.
Briefly explain your concerns to the board and suggest that the board put out a statement about where things are at with the 15-foot areas. In the statement, be completely honest; point out that confusion over landscaping covenants happens in many HOAs; and that regardless of what an incumbent board believes the covenants say today, the HOA Board has a duty to respect money people spent relying on what a prior board told them. The HOA also has a duty to ensure some kind of attractive standard of appearance, pursuant to covenant __ and covenant __ (I am going to assume these exist). State that the HOA will continue to require owners to submit plans for their landscaping within 15 feet, and the standard will be general attractiveness (or use wording from the Declaration or present guidelines, if they exist). When the board receives an application, be generous.
4.
If I may: Try not to sweat not getting everything "right." I believe all the directors at this forum have made serious mistakes in their service at one time or another. Did the HOA survive this? Sure. You all are volunteers. You do the best you can. I doubt there is a "serious mistake" even possible in this situation.
5.
Some combination of the above. E.g. get the attorney's opinion, then decide what you want to do (stay on the board but not participate in approval process; quit the board; more).
Summary of the situation: The HOA has people who may have spent a lot of money on landscaping, relying on what the board told them. The HOA may have people who paid extra for the home because of the present landscaping. The HOA may have people who bought a home with negligible landscaping but with big ideas in mind, that they then implemented. The money spent here, while relying on what past boards said, is a big deal, in my experience.
My sense is there is now a hodgepodge of landscaping within the 15 feet of each home, with quite a few homes perhaps being technically in violation of the covenants but quite possibly not legally in violation of the covenants. That is, a court might very well say the covenant on the 15 foot area is now abandoned. Or Wisconsin might have a statute of limitations, prohibiting covenant enforcement if an obvious violation existed for so many years. E.g. in some states, the limit is five years.
For several reasons, my opinion is this cannot be untangled in any perfectly rational way. And the latter reality is no big deal. To be a good leader, I believe accepting this is important. Messiness like this happens a lot in HOAs after say 15 or so years pass. Volunteer boards cannot be expected to get things perfectly right. Nor can HOA attorneys. (Some HOA attorneys are in fact terrible.)
What is important is that the place thrive as a nice HOA where people want to live and the covenants are respected as much as reasonably possible. Can the board still make a decision here that allows the HOA to continue to thrive? Sure.
At this point I am not sure why the HOA has an approval process for this 15-feet, but you seem to be saying it does. Is this so? If an approval process does exist, then this is probably a good thing. If you quote here any architectural guidelines from the Declaration or otherwise presently in place, this would be helpful.
Some options, thrown together:
1.
The board could always take direction from the HOA attorney. But there are no guarantees what the HOA attorney advises will insulate anyone there from a lawsuit. Being on a board always risks being named as a defendant in a lawsuit. I think a director has to become comfortable with this possibility or else decide not to serve. On the other hand, it is rare that directors are named in lawsuits. This forum talks about directors being named as defendant now and then but this is because the forum naturally tends to attract those who want to solve a problem. A "problem" often translates to there being some kind of difference in viewpoints. Where there is a problem, a lawsuit is more likely. I happen to feel you all could skip the attorney, because there is no perfect "solution" here. Plus your HOA needs an attorney with //wisdom//. They are out there, but it's a bit of a roll of the dice, in my specific experience.
2.
Tell the Board that the approval process is not clear to you, and ask if it is okay with the board if you do not participate in it. I do not think this actually protects you from anything, but if you think otherwise, I understand. Some here will say each director has a duty to participate in all votes (unless there is a conflict of interest). I disagree. Directors have a right to abstain on occasion. This //is// still participation IMO. And it is ethical.
3.
Briefly explain your concerns to the board and suggest that the board put out a statement about where things are at with the 15-foot areas. In the statement, be completely honest; point out that confusion over landscaping covenants happens in many HOAs; and that regardless of what an incumbent board believes the covenants say today, the HOA Board has a duty to respect money people spent relying on what a prior board told them. The HOA also has a duty to ensure some kind of attractive standard of appearance, pursuant to covenant __ and covenant __ (I am going to assume these exist). State that the HOA will continue to require owners to submit plans for their landscaping within 15 feet, and the standard will be general attractiveness (or use wording from the Declaration or present guidelines, if they exist). When the board receives an application, be generous.
4.
If I may: Try not to sweat not getting everything "right." I believe all the directors at this forum have made serious mistakes in their service at one time or another. Did the HOA survive this? Sure. You all are volunteers. You do the best you can. I doubt there is a "serious mistake" even possible in this situation.
5.
Some combination of the above. E.g. get the attorney's opinion, then decide what you want to do (stay on the board but not participate in approval process; quit the board; more).
LoriM15 (Florida)
Posts: 1,009
Posts: 1,009
Posted:
We have a waiver that we had our attorney write that we make owners with something in our easement sign. The waiver says that they are aware that the item (fence, pool deck, whatever) is in the easement illegally and that while we will not make them remove it, they can't replace it. The signed waiver is recorded with the county so the next owner is aware of the issue.
That might be a solution for you since so many people have landscaping in the conservation easement. You can keep it, but you can't replace it if it dies. And it's recorded with the title for the next owner.
That might be a solution for you since so many people have landscaping in the conservation easement. You can keep it, but you can't replace it if it dies. And it's recorded with the title for the next owner.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Lori's advice & her HOA's solution look very promising, Nancy. Lori is a long-time serious board member. And it does involve an attorney, who'll know about any possible statue of limitation.
Elle's #5 Is get the attorney's advice first. Yes!
Elle's #5 Is get the attorney's advice first. Yes!
NancyD5 (Wisconsin)
Posts: 71
Posts: 71
Posted:
My sincere thanks to all who responded! Its always helpful to bounce things off on others who have much more knowledge than I do especially in this situation.
TerriS6 (California)
Posts: 3,284
Posts: 3,284
Posted:
Quote:
Posted By NancyD5 on 03/13/2024 7:20 PM
Thank you for all your responses. The Conservation Easement states that the 15" around each condo unit is for the exclusive use of the owner but one of their auditors said owner can do whatever they want in that 15" area. Now our Declaration says all improvements, including plantings need to go through the submission process and that all plantings must be native.
The previous Board told all the unit owners what the Easement auditor said rather than telling them what the Declaration says. I am now on the Board and I'm not so sure all of us have this freedom to do whatever we want in this limited area. Thoughts?
Thank you for all your responses. The Conservation Easement states that the 15" around each condo unit is for the exclusive use of the owner but one of their auditors said owner can do whatever they want in that 15" area. Now our Declaration says all improvements, including plantings need to go through the submission process and that all plantings must be native.
The previous Board told all the unit owners what the Easement auditor said rather than telling them what the Declaration says. I am now on the Board and I'm not so sure all of us have this freedom to do whatever we want in this limited area. Thoughts?
Normally, a conservation easement would have its own restrictions subject to the laws under which it was created, so the land would not be subject to restrictions in your CC&Rs.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
Quote:
Posted By KerryL1 on 03/14/2024 5:57 PM
Lori's advice & her HOA's solution look very promising, Nancy. Lori is a long-time serious board member. And it does involve an attorney, who'll know about any possible statue of limitation.
Elle's #5 Is get the attorney's advice first. Yes!
Lori's advice & her HOA's solution look very promising, Nancy. Lori is a long-time serious board member. And it does involve an attorney, who'll know about any possible statue of limitation.
Elle's #5 Is get the attorney's advice first. Yes!
Demanding that an owner remove something that an owner installed with board approval, especially where the cost was high or where doing so may affect the home's attractiveness to buyers, is hazardous to the HOA's legal health.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
Elle wrote: "Some combination of the above. E.g. get the attorney's opinion, THEN....[my emph.]". My reading is get attorney's advice first, then....
Lori's HOA worked with an attorney. Shelia, another long-time director, also advises an attorney. Boards are entitled to and advised by their state's Business Judgment Rule, or similar to seek the advice of professional experts as a part of their "duty of care," i.e., due diligence." One hopes your have a legal fees line item in your operating budget, Nancy.
ElleN (Idaho)
Posts: 4,420
Posts: 4,420
Posted:
Quote:
Posted By KerryL1 on 03/16/2024 10:04 AM
Elle wrote: "Some combination of the above. E.g. get the attorney's opinion, THEN....[my emph.]". My reading is get attorney's advice first, then....
Elle wrote: "Some combination of the above. E.g. get the attorney's opinion, THEN....[my emph.]". My reading is get attorney's advice first, then....
Second, read what I said earlier in this same post.
Regardless, the fact that owners have relied on having received board approval either when they decided to spend money on landscaping or when they decided to buy the home is important. As well upon a home being put up for sale, if Wisconsin statutes require HOA disclosures pertaining to violations, and no such violations were noted, then the HOA is estopped from pursuing violations subsequently.
Mostly I do not think you have studied what the OP has said about this landscaping (inconsistent with the covenants) going on for years. As well it appears to be common throughout the grounds.
Such is my opinion, based in at least as much experience or more than you have (not that this matters, except to those who favor ad hominems over facts). If you post something to change my mind, I will say so.
KerryL1 (California)
Posts: 14,550
Posts: 14,550
Posted:
OK. Though it's, uh, unusual to start a sentence with "E.g.," Elle's sentence would read, "Some combination of the above. [For example,] get the attorney's opinion, THEN...".
My reference to long experience here was to many years on an HOA board.* During that time, there are many issues that the Board needed to consider, when we grappled with whether to seek our HOA attorney's advice. Sometimes we did, sometimes we didn't. But almost every time we did, it was for legal interpretations of statute and/or our governing documents related to some HOA matter.
*My HOA has a collections attorney for that issue.
My reference to long experience here was to many years on an HOA board.* During that time, there are many issues that the Board needed to consider, when we grappled with whether to seek our HOA attorney's advice. Sometimes we did, sometimes we didn't. But almost every time we did, it was for legal interpretations of statute and/or our governing documents related to some HOA matter.
*My HOA has a collections attorney for that issue.
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