Resident interferring with contracted work

We are a very new and small single family condo development in a wooded area. Because of a number of fallen tree limbs we, the BOD, made the decision to cut down all dead/dying trees that could do damage to the condos and driveways should they fall. We have been told by our insurance agent that the Association could be held responsible for the damage these trees could do if they are not taken down. The trees were marked with the exception of one because the resident whose condo it was by only wanted the dead top 10' cut off. It was decided that would ask the tree guy his opinion as to what life was left in it. He stated for safety reasons he would cut it down to a level that if it should fall it wouldn't hit the condo. So it was decided to follow his advice. The day the work was done the resident refused to allow the hired men to cut any more than the top 10' of the tree stating she had spoken with her insurance agent and her lawyer and she also told them that the tree in is her 15' of "limited common area" so she will take responsibility for it. Of course the workers not sure of what to do just cut down the top of the tree. When she was leaving for the day, she wrote a note and gave it to the contract worker stating that if he was instructed to come back and cut more of the tree that he would need to contact her lawyer first. The Association has paid to have that tree cut down to a safe height of which it was not. Now what?

The tree is not one she, herself, owns or put in. It has been here prior to any building in this area. I do believe the tree is in the 15' "limited common area" but in order for anyone to do anything in this 15', including any plantings, they must turn in a submission form for approval by the Architechtural Committee.

Nancy,

Look in your CCRs or other gov docs for a provision, I belive it might be under "maintenance of lots", that gives the assn the authority to maintain landscaping, etc. on a members property. Also check to see exactly what "limited common area" means. IMO, it may mean that the owner has "limited" use and rights regarding these particular areas. If the "limited common area," is to be treated by each individual homeowner as their own land and they perform all maint, then the member may have the right to dictate what happens to the tree; but if the assn performs all maint on the area,then the member may not have that right.

Bottom line: I believe the answer to your question may be found in your gov docs.

I guess I don't quite understand what the docs say about that. We just did what the insurance agent suggest we do to prevent claims being made against the Condo Association.

I can tell you that under the title of limited common elements it says "subject to the easement rights set forth and any restrictions set forth in the Declaration, the exclusive right to the use and enjoyment of the limited common elements shall be reserved to the owner of the unit".

The definition of limited common elements is "any patio, porch, deck, driveway or any portion of the condominuim which would otherwise be common elements with 15' of any unit shall be known as limited common elements for the exclusive use of the owner of the unit. The owner of a unit to which a patio, porch, deck or driveway is attached or is exclusinvely servicing an individual unit shall be solely responsible to repair all defects and damages and perform all necessary upkeep."

And it says that each unit owner is responsible for obtaining insurance coverage on all improvements on the Unit and on all personal property within the unit and that they shall maintain the Unit at their sole expense. The Unit is described as "a cubicle of air and soil having vertical sides....." and that unit ownership entitles us to an undivided percentage in the common elements.

Yes, we are responsible for cutting the grass and plowing snow in and out of the 15". In the definition of unit it doens't say anything about the limited common elements. On my condo deed it just says under legal description Unit 3.

Thanks to everyone for helping me. None of us on the board have ever done this and the money is so tight that the few residents we have will be very upset that we spent this money and the problem wasn't taken care of. This 30' or more tree is still there, dying from the top down and we now will have to pay twice to have it cut completey down.

Thanks so much for your reassuring words. It is frightening when owners say they are going to a lawyer. You get afraid to do anything. We have only been in exsistence for 2 yrs and we have already had this owner and some others hire an attorney to question the legality of our past election. To the tune of $1200.00 in attorney fees for us. Owing this money for this, did not go over well with some of the other members. And now this. We can't afford to pay the contractors to come out again to take care of this hazardous tree. And after their experience with this unit owner I'm not sure they will want to come back.

Dues payers who sue their boards are suing themselves......it's interesting to hear a resident threathen to sue you because the "you" in questions is themselves and every resident of the HOA.

When the complaints roll in about a lack of site maintenance, refer your aggrieved parties to the legal fees they had to pay to defend themselves from themselves.

Negligence can be an issue that must be addressed in the courts because residents cannot count on their HOA boards to act in the best interest of the community.

But, let's get "real" here, too many residents and board members throw the "lawyer card" as an act of intimidation. A board member threatening to personally sue a colleague on the board is highly destructive. I'd quit the board immediately and take my hundreds of hours of volunteerism someplace else. Call a "closed session." Refuse to accept my resignation because I didn't follow the by-laws. My seat will be cold beginning with the next meeting. There's much more to life than spinning one's wheels fighting over HOA stuff on behalf of an apathetic majority.

I've never experienced an actively volunteering (working) HOA member or involved resident threaten lawsuits to get his/her way. These people tend work it all out. On the other hand, a board with a bunch of Armchair Quarterbacks is effectively useless and loses the respect of the dues payers. It's the lazy ones that call their lawyers, ruin the party so-to-speak and then complain loudly because the dance music gets turned off.

It's a no-win situation when threats get tossed around. The bums will be sitting alone, making decisions with no one around them (themselves included) with the willingness to have any effective influence on the community's growth.

Residents should have no sway with a contractor. But, the contractor and the HOA board that hired them should know their boundaries before firing up chainsaws. I can't blame people for not wanting trees cut down and resisting within reason. If the woman has a lawyer, then call the lawyer and deal with it. She's paying her lawyer tab, not the board.......a ten-minute phone call shouldn't cost her more than $20.

Okay - I'm feeling a little "mean" this afternoon. Forgive me but indulge me this once.

Kelly,

If I'm not mistaken, Nancy said the member threatened legal action against the board. But, you make it sound like HOA boards are going around threatening legal action all the time. I don't know who does it the most, but, I do believe in most instances with members it's just a threat. When a board threatens legal action, I believe in most instances it's because the member is delinquent in paying assessments or paying CCR violation fines, meaning they have a justified reason to take legal action. I'm sure there are some errant boards out there who may threaten in a mean-spirited way, but I would venture to say the threats of legal action come more from members.

I cannot agree with you that the board should call the member's lawyer. If anyone were to call the member's lawyer, other than the member, it would be the assn's lawyer. In this case, I don't believe this member has a right to dictate what happens to the tree as the assn is resp. for maintaining her limited common area and that is what they were doing. But, because of her antics, to have the tree removed will cost the assn a lot more $$$. IMO, the BOD cannot let something like this happen again!

Please clarify for me "fight this one". Is there some action we as the Board should be taking? Once the work was done we went and inspected the areas where the trees were to be cut. When we got to her's she came out and asked us if there was a problem. We said yes there was since the tree was to be cut to a safe height and not just topped off and that she shouldn't have told the workers do anything different. She became angry and told us to get off her 15' and if we wanted to look at the tree again we need to stay 15" away and look.

I have 2 more questions, can we, the Board and the ACC members, go in the 15" of "limited common area" whenever we need to when conducting Association business? And also, since we will have to pay to have someone come out and do the job again, can this fee be charged to her rather the Association paying it again? Thank you.

You know, I always say "limted common area" when the docs really say "limited common elements". By what others are saying, I am beginning to think that there is a difference between the two. Is there?

Nancy,
The answer to your two questions are ,"yes". No one knows what a judge will rule, but the story here as explained, seems simply a case of who an owner overstepping the line. Happens all the time, no big deal.

The Board now is being forced to act like a Board and the sooner they do the better. Get your lawyer to write this owner a letter, make sure all the Board understand what the lawyer is talking about when he/she references your document.

If this owner wants to sue, let her. But first try and explain who has control and why. Ask her to appear before the Board for a discussion to resolve the differences, be polite and send a letter from the lawyer. Limited common property, as I said has nothing to do with describing owners property. It has to do with describing usage of the property. Usage is not ownership, it is defined by your documents.

Does the "Board" have the right to enter any of the property as defined by the complete description of the total property. "Yes" they do, it's in the book (remember that song?) If the Board determines it is necessary to go anywhere, even inside a unit because of an emergency or to prevent damage to the common (all) property, they have that right. Pray tell, why not?

Back this owner down and charge her any expenses you have in connection with doing the Boards business. Prime is protecting the common (all) property.

I would imagine Limited common property refers to a piece of property designated for restricted use(as defined by the Board and/or documents) and limited common elements may refer to things like swings, or picnic tables or water fountains or grills. That's my guess and it seems to make sense.

But the sun is just about down so I am ready to go back to my cave and konk out.

Try this Nancy, From Google

You will have to clean it up, but Realty times is a well respected magazine.

Housing Counsel: Who's Responsible for Areas Outside Your Condo Unit
by Benny L. Kass
Question: What responsibility does a unit owner in a high-rise condominium have with respect to external doors, windows, balcony railings, or roof decks? Does a unit owner have any direct responsibility for other than the internal space and contents of his or her unit?

Answer: The answer to your question should be found in your legal documents. In a condominium, there are three basic legal instruments: the Declaration, the bylaws and any rules and regulations.

The Declaration is, in effect, a deed which establishes and defines the condominium and which recites the manner in which the Declarant (also called the "Developer") desires to submit the property to a condominium regime. The Declaration describes such matters as the boundaries of the units, the items and areas that will comprise the common elements, including limited common elements, if any, and a determination of the unit owner's percentage interest in the common elements.

Your Bylaws are the Bible as to the day to day operation of your Condominium Association. The Bylaws provide for meetings and voting, the manner in which the condominium budget should be prepared, the determination and handling of assessments including special assessments, the filing of assessment liens, the nature of insurance coverage and restrictions on the use of the units and the common elements.

The Bylaws also provide that the Board of Directors of the Association has the power to establish rules and regulations governing the use of the condominium.

Boards of Directors usually will adopt rules and regulations which cover matters which either are not contained in the Bylaws (such as how and where to store bicycles), or which need further amplification. For example, the Bylaws may allow pets. The Board can enact a rule spelling out the rights and responsibilities of pet owners.

Condominiums have three components. Let's look at them separately:

1.Units: This is your space; this is where you live; you own it. In order to determine what is your space, you have to read your Declaration. Additionally, the units will be shown on the condominium Plat and Plans.

2.Limited Common Elements: (referred to as "LCE") This is a common element and is reserved exclusively for use by one or more, but less than all, of the unit owners in the condominium. Limited Common Elements may include balconies, roof decks, storage areas and parking spaces. The Declaration will define Limited Common Elements and the Plats should show where in the complex they are located.

3.General common elements: This relates to those portions of the property used by all of the unit owners in general. Everything that is not a unit or a limited common element is a general common element. For example, the general common elements include, in addition to the land, such items as foundations, roofs, slabs, perimeter walls, boiler rooms, corridors, laundry rooms, common stairs, building lobby, trash areas, utility rooms, water mains, etc.
Thus, you first need to determine whether the items you are questioning are part of the unit, a limited or a general common element. Your Declaration and your Plats and Plans should provide the answer.

In general, the maintenance responsibility for common elements -- including LCEs -- rests with the Association through its Board of Directors. While you have the right to use your patio, for example, you do not have the right to make any structural changes to it. If that balcony is in need of repair, only the Board of Directors has the authority to hire contractors. However, in some associations, the Board has the right to pass the cost of repairs on to the owner (or owners) who have exclusive right to the use of that LCE.

The answer to your question can be found in your legal documents, and specifically in the Declaration and the Plats and Plans. Every unit owner should have a complete set of the legal documents for his/her association, and should periodically review those documents. If you do not have a complete set of these documents, ask your property manager for a copy.

Your condominium unit is your investment, and you should understand your legal obligations.

But I want to toss your question back to you: what do you mean by "responsibility"?

As an owner in your association, you -- along with all other owners -- have certain basic responsibilities. You have to abide by the association's governing documents, whether or not you like them. If your balcony or patio is a limited common element (which I suspect it is), or if the windows are common elements, you do not have the right to make any changes, modifications or improvements. You cannot damage, destroy or even alter common property.

You do have the right to lobby your Board of Directors to make the necessary (or cosmetic) changes, but that is a decision which rests solely with your Board. If you do not like their decision, you have only three choices: try to get elected to the Board, put up with the situation or move out.

Published: September 26, 2005

Use of this article without permission is a violation of federal copyright laws.

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Robert,

Thank you so very much! I have a much better understanding of this now. Single family condos sounded like a dream come true. Condo living without being attached to someone else. When in reality it makes things more difficult to manage. Owners have now taken over the grounds, whether limited or not, and have treated them as though they were there own yards. Everyone is doing their own thing.

We are just beginning to understand our docs and what rights owners have and don't have. And so we are now trying to get things the way they should be but we are coming up with alot of resistance as you can see with the tree cutting. I can't imagine what is going to go down when they will be told that they need to send in a submission form for everything they have done to the grounds in the past and for anything they plan to do in the future.

Being able to bounce things around here on this site has been a great help. Again, thank you.

Any ideas as to how to approach this resident about getting back the money the Association spent to take down the tree so we can get the men back here to finish the job?

Nancy,
As Mary is politely suggesting, the Board has a little investment in this misunderstanding also.
At this stage of the game, why not use the straightforward open approach and have a couple Board member visit with this person, explain what happened, why it should not have happened and why you all think a fair resolution would be for the association and her to split any additional costs to protect the common property.

She can refuse, you could pick up a supporter or she could ask you all to leave. In any event you have put your best foot forward, you have established the Boards authority and you have established a record. Then you all sit down and decide if you want to push the matter, if you do, a letter from the Board requesting payment for half the cost should be sent. She don't answer, get your lawyer to send a letter requesting full payment because she refuses to discuss the matter, and take her to court if necessary. Of course this is an opinion and if it gets this far, I would expect the lawyer to advise you all.

Nancy as a manager here is what i would recommend a board do in this situation. if the board did not feel comfortable going forward, which is certianly sounds like it has the right to do, then call her bluff. send a drop dead notice that the associaiotn feels pursuant to XYZ section of the docuements that it may proceed with cutting down the tree and will proceed by "x" date unless she can provide sufficient legal cause in writing to justify not proceeding.

I will bet there is no attorney and if there is it is not one who understands the cirucunstances and the legalities of common versus limited common versus personally owned property rights and responsibilities within an association. And the advice that she received was a freebie and off the cuff without research. Maybe not but make her show cuse for stopping the workers. You will also want to advise her that she is at this time precluded from contact with any contractor on-site and if she interfers in the future any lost time or work charges will be billed to her account. this is if you want to stop this right now and not have a continued repeat of this scenerio on every issue that comes up around her unit.

One thing I would recommned following up on though is this insurance recommendaton. We get them all the time and they are not hard cold requirements to retaining the policies nor are they required actions or claims will be refused. they are at best recommendations for action to reduce the perceived potential risk for the "insurance company" not for the association. It is a lot like an insurance agent on an auto policy telling the potential buyer don't drive the car in a hail storm. Great idea for everyone but not reealistic or required to either obtain, retain, or claim against the policy if the occurrence happens.