Maintaining the Common Areas

QUESTION: The board of our homeowner association recently hired a landscape contractor to plant and maintain the area behind several homes. These areas are designated as “restricted common area/homeowner maintained” in the Declaration of Covenants, Conditions and Restrictions. The board felt that they were acting properly because weeds had become a fire hazard in the unmaintained areas.

I notified the board in writing that they did not have the authority to change the maintenance responsibility that is stated in the declaration. I feel that a more appropriate action would be fining the owners who have failed to maintain their restricted common area and calling the fire department to enforce weed abatement.

The manager told me that the board may advocate a declaration amendment and conduct a homeowner vote. The board is displeased that I questioned their actions and it appears this may escalate to a legal battle.

What can you suggest?

ANSWER: The declaration may have a provision that allows the association to bill the owners for the cost of maintaining the areas that the owners failed to maintain. Perhaps that is the board’s intent. Make sure that you are fully informed about the entire matter before you criticize the board’s action.

The board has an obligation to uphold the declaration. Perhaps they have notified the owners who were in violation of the maintenance requirements of the declaration, conducted hearings to encourage the owners’ cooperation and levied monetary penalties against those owners who failed to correct the problem. If the declaration allow the association to pay for correcting the problem and then billing the owners, that would be the ultimate course of action.

Relying on the fire department to enforce weed abatement is an example of using outside sources and governmental services to assist the association.

It is not appropriate for the board to use association funds to pay for expenses that are beyond the scope of the association’s responsibility as stated in the governing documents. If they treat you as the enemy because you disagree with their decision, they are just compounding their error. The board should understand that it is healthy to have “watchdogs” in their midst. Boards sometimes make improper decisions. They should be willing to revisit a decision and change it.

It is ridiculous if this disagreement is allowed to cause legal expense for you or the association. Perhaps the board needs legal advice to learn about the scope of their authority and alternative enforcement methods. That is appropriate use of funds.

If the board fails to change their decision, you can request mediation to air your concerns and resolve the matter.

Who’s Responsible for Former Owner’s Fees? Q: I just bought a condo and I am already having problems because the former owner was delinquent. The homeowner association is threatening me with a lien if I do not pay the monthly assessments and late fees that the former owner did not pay. The association says that the escrow company failed to collect the unpaid assessments from the seller. The association had released the lien because they thought that the escrow company would collect the delinquent assessments and fees.

A: Normally, you would not be obligated to pay the delinquent assessments. If the escrow company was notified of the delinquent assessments, the escrow company should have collected the money from the seller, regardless of a lien having been released.

There may be some facts that are not contained in your letter. This is a serious matter that you must not ignore because the association has foreclosure rights. If the association files a lien against your property, you should obtain legal advice immediately.

Association Can Change the Rules by Vote Q: In 1972, my wife and I purchased a condominium in a community association in Southern California. There were no restrictions on the amount of time that owners could rent out their units. We have rented out our condo unit for periods of one or more weeks during the ensuing years.

Now the association membership, by a weighted majority, has approved amending the regulations to prohibit rentals of less than one-month duration. Is such a restriction binding when the restriction did not exist at the time that we purchased our unit?

A: Owners need to understand that even though the Declaration of Covenants, Conditions and Restriction are the “constitution” of the association, they can be changed by a super-majority vote of the membership. Most declarations require approval of 66% or 75% of the owners to amend the document. Assuming that the amendment procedure was done according to the CC&Rs;, the new amendment is probably binding.

Though you may not be in favor of the change, I’m sure that you can understand the reason for the amendment. Short-term rentals can be a nuisance for the association, especially if the owners do not ensure that their tenants abide by the association’s rules and regulations. A large majority of the owners must have decided that the change was in the best interests of the association.

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Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions. Send questions to: Condo Q&A;, Box 5068, Thousand Oaks, CA 91360.