These Gardeners Make Noise Grow

SPECIAL TO THE TIMES

Question: We live in a comparatively small common interest development that has recently employed the services of a management company. There are 33 condos and extremely low maintenance.

Since the hiring of the management company, our board has become bored and now looks for things to do. Several homeowners have complained about the fact that the board has employed more gardeners, for more hours, with more noise. Homeowners are now met with two to three days of noise, loud talking and yelling, lawnmowers, trimmers, sprinklers, walkie-talkies and cell phones, all tools of the gardeners.

Our grounds are not complicated, but because the board members are ignoring the pressing common area problems, they are concentrating on what they believe homeowners will recognize as diligence in doing their job. We want the common areas affecting homeowner units corrected, not 24-hour gardeners. Can we do anything about this?

Answer: Your right to quiet enjoyment of your property is fundamental in the law in California. Your board has other ideas and, because it represents you, its efforts that interfere with your enjoyment may be unstoppable.

Start by letting the board know, in writing, that 24/7 gardening is disrupting your enjoyment of your property and request that they reduce the activity.

A complaint to the management company, if it is responsible for hiring the gardeners, is next, quickly followed by simply asking the gardening crew to reduce the noise level.

If your board is adhering to the law, which requires its meetings and its decisions to be made in the open, you can ask the board to justify the gardening at the expense of the common area problems, thus putting the board on notice of those larger issues.

If your board has as much free time on its hands as you indicate, it might be wise to escort members on a tour of the entire complex, pointing out as you go along, the more serious problems they should be fixing. You might remind the board that the law (Civil Code section 1364 of the Davis-Stirling Act) makes it responsible for "repairing, replacing and maintaining the common area."

Most boards do what they do because they want to avoid litigation and liability. Not doing what they are obligated by law to do only invites both.

Management Company Strong-Arming the Board

Q

I am not a board member, but our management company constantly reminds our board that its members are "board members only once a month." We have 65 homes in our Orange County common interest development. For three years, the management company has effectively shut out all the homeowners, and now they are moving to shut out the board. Is this legal? Is there anything we can do?

A

Management firms are not more powerful than their employers, the homeowners association. Civil Code section 1363 says "a common interest development shall be managed by an association," not by a management company.

It appears as if your board has improperly and, perhaps, illegally abdicated that responsibility. Of course, if the management company has usurped that authority, then the management company may also be in violation of the law.

Boards are not required by the Davis-Stirling Act to hire management companies. Your board should put the management company on notice that it is no longer to dictate to the board. It is the board that tells the management company what to do. Permitting the management company to dictate policy to the association only opens the door to potential liability for the homeowners.

This sounds like a job for the attorney general, the legal officer charged with enforcing the laws of this state. It may even be a classic case that the attorney general would use as a sword against abuses like this by management companies who make their own rules and then try to persuade homeowners to abide by them, rules that have no concern for individual homeowners or their rights.

The other possible solution, although costly and not one we like to recommend, is that you, as a homeowner, seek an injunction against the board prohibiting it from abdicating its responsibility as a board and, at the same time, prohibiting the management company from taking any action unless authorized by the board at a meeting held in compliance with Civil Code section 1363.05 ("Common Interest Development Open Meetings Act"). Alternate dispute resolution is also a possibility and might be worth investigating. It's useful if both parties agree to make the arbitration binding. Enforcement of the arbitration award may still require a court order.

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Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Both live in common interest developments and have served on various association boards. Please send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045, or e-mail your queries to: CIDCommonSense@aol.com.

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