Homeowner Landscaping – Can The HOA or Condo President Obliterate It?

Here is a “sad” commentary on cooperative efforts:

“To Condo Guru, Our Association is 14 years old. In the beginning there were serious landscape problems. Homeowners, including nearly a dozen HOA board members, pitched in and did landscaping immediately adjacent to their front doors. The homeowners have also continued to care for these same areas.

Our new HOA president who is also a fairly new owner spent the day before Thanksgiving with the landscaper removing little planters, benches, garden statuary, stepping stones, etc.Most of these items have been in place between 5 to 15 years. Isn’t there some statute of limitation for rules that are never enforced?”

Answer: I have done an E-newsletter on the subject of a 5 year statute of limitation that is in the E-News Archives on my website and the Enforcement E-1 Primer available in the webstore has a fuller discussion on the issues surrounding statute of limitations battles and the questions that come up. In this case, if all this is true, and there was no warning, it was not a good way to handle the change in landscaping practice.  However, the statute of limitations law may not provide relief in this case simply because of the removable nature of the items and the idea that use of the common area in the manner described for several years does not really give the owners continuing control over it. If the work done involved structures of some kind, like a deck extension, or something more permanent, it might be a different situation. In this case, if the board takes a position there was some viable reason for doing what was done, it might support the president’s actions – still – there should have been a warning giving owners an opportunity to understand what the reason for the changes.

It is not clear whether this was a board approved plan of action, so there may be an outstanding issue over inappropriate actions by an officer acting on their own without board approval.

The governing documents most likely give the Board control over the common area (assuming these front lawns are common area) and so the Board could probably make the decision to “relandscape” and/or remove anything it felt was an obstruction, hazard, eyesore, or detraction from the overall landscaping.

Attacking this from the statute of limitation perspective may or may not be fruitful. There may be a lot unsaid from the Board’s perspective as well.

If an owner wanted to fight this, he or she could spend the money to have a lawyer write a demand letter to put the items back. An owner could bring a small claims action asking a judge to make an order to put the items back. Frankly, I believe it would be an uphill and probably frustrating battle. I do not think it likely that given these facts, the board is likely to give in easily either. The other directors will probably protect the president’s act for the sake of the association.I am not in a position to render any specific opinion but this is my “two cents’ worth.”

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2 Responses to Homeowner Landscaping – Can The HOA or Condo President Obliterate It?
  1. PSmith
    January 25, 2010 | 8:59 pm

    My Association is incorporated, and the current management company is also incorporated. How does the recent Supreme Court ruling affect elections (regarding unlimited funds for campaigning). A few years ago legislation changed to make certain HOA requirements under Election Rules, but now can the assocation and/or management company throw unlimited money at elections for their candidate?

    • Beth Grimm
      February 6, 2010 | 6:14 am

      If you want to tell me what case you are talking about I can look it up. In California, Civil Code Section 1363.04 prevents the association from spending association funds to support a candidate. And 1363.03 says associations must provide equal access to resources meaning that all candidates should be treated equally when association meeting rooms or communications are offered to a candidate for campaigning.