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June 20, 2007
May Residents Plant Flowers in the Common Area?
You would not believe how troublesome this subject can be. Here are some questions that have been sent to me on the topic:
Is the Board of Directors allowed to allow homeowners to alter the landscaping outside their units? ... What happens when residents plant flowers or trees in the common area, who maintains them? .... We have a disaster. Residents in our association have taken over the common area for gardens, yes! They are planting tomato plants right in the front yards. ...
The short of it is this: Usually, the Board would be allowed to allow residents to plant in the common area. That is because usually, the documents for the Association give the board authority to regulate maintenance of the common area. There could be restrictions or prohibitions on it, so look closely at the documents. Now the question: is it a good idea?
It is interesting how diverse the opinions of Boards are on this. Some boards want to retain the "cookie cutter" look where everything needs to look exactly alike and in that case a Board would probably be against letting owners do anything. Then, at the opposite end of the spectrum, there are the Boards that let residents do whatever they want to do. In these cases, a common problem is that residents get excited about planting, but not the ongoing maintenance of the planted areas, and then the Board becomes responsible for making decisions about what to do. If they try to remove the plants, the residents scream; but if they don't, the neighbors scream.
So here is some advice on this subject if you are (as a board or community) inclined toward the non-cookie cutter look):
1. Check the documents to see what authority exists.
2. [Perhaps] Poll the owners to see if they are in favor of having some individualism in the common area.
3. Choose specific areas and not entire lawns, if you want to retain some common look.
4. Set parameters through rules, standards or policies (and do not forget the California requirements on rule-setting in Civil Code Sections 1357.100 and following).
5. Consider requiring a signed agreement between the Association and Owner who wants (or whose tenant wants) to do some individual planting that says if the person doing the plantings fails to maintain them to the standards required by the Board, the Owner of the Unit must have the plantings removed and restore the area to the standard required by the Board (that is equivalent of course of other areas).
If residents plant in areas that are common area and there is no authority in the documents for this, the Board would generally have the right to enter the areas (after all, I am assuming we are talking about common areas) and remove the plantings. If the documents allow the Board to do work that would otherwise be an obligation of an owner and seek a reimbursement assessment, then that is a reasonable direction to go. That would require a hearing under Civil Code Section 1363, and my suggestion is always to give the Owner the opportunity to do the work required before considering doing it and charging the Owner. I think this serves well if the Board is challenged on collection of the assessment or taking the action.
If the area is "exclusive use" common area, there may be more to the discussion. Owners tend to assume they can do anything they want to in exclusive use common areas. Boards often wonder if they have any authority to regulate these areas. Usually the Board does have authority to set and enforce standards in these areas, such as having rules about what can be planted or kept on patios and decks, etc.
When considering allowing Owners or residents to plant in common areas, the key is to think about what that means in the grand scheme of things. Will it complicate the work of the association gardeners? Will it increase costs to the Association in any way? Is there clarity in who maintains the areas once planted? Is there a means to force the Owner or resident to restore the area if the plantings are not maintained. Is there a need to have a written agreement, or a benefit to having one? (I would guess the answer is "yes"!) Have you set up some standards for what can be planted in the visible or non-visible areas? (Tomato or vegetable plants in the front yards are probably going too far, but herbs may not be.)
Like everything, a little balance between the diverse opinions as to how much individuality should be allowed is worth at least considering.
Posted by Beth Grimm at June 20, 2007 8:05 PM