By ordering garden ripped out, board risks cultivating ill will

Question: When I bought my Irvine-area town house in 1983, I complained about the lack of plants and shrubs around my property. The sales office said they weren’t spending any more money where my unit was located.

At my expense, I purchased and planted many shrubs and plants similar to the other units’. For more than two decades, I watered, trimmed and fertilized these plants. Recent boards have not approved of my actions. One board member destroyed some of my flowers. The next board threatened to take me to court to remove the plants. This latest board has told me to remove the plants or suffer the consequences. I told the board I had a “prescriptive easement” and the statute of limitations was four years.

I’m 90 years old and don’t have much time left, but as long as I can still take care of these plants, I want very much to care for them. What can I do?

Answer: This is one of those instances when even though the board technically may be right, the action they take may fundamentally be wrong.

Though you may have met all the elements for establishing a prescriptive easement (a method of acquiring title to real property), one cannot acquire such an easement on deed-restricted property within a common-interest development.

This is because the covenants, conditions and restrictions (CC&Rs;) may indicate you own an undivided fractional interest in the common area and because of that ownership interest, you cannot unilaterally acquire an easement of any type over that property. If the portion of land you used was “exclusive-use” common area, you could continue to garden on that portion of property because you have an easement for your own use.

Though the board may have a cause of action against you for unauthorized use of the common area, why they would want to antagonize you and the other neighbors who appreciate and enjoy your efforts is hard to understand. When an association sues an owner, all the owners fund the lawsuit. Presumably, the purpose of their suit would be to order you to rip out thriving vegetation, but they would be hard-pressed to define the exact damages suffered by the association because of your actions. You beautified association grounds and did so while the board watched for 20 years, letting you do it. Although the association’s failure to act may be a defense if they sue you, it does not change the ownership or maintenance rights and obligations for the common property.

Your long-term maintenance of the area might give you a basis for seeking reimbursement for the costs you have incurred over time. The fact that the board may have breached its own duty in failing to maintain the property would probably not, in most instances, give a homeowner the right to assume that responsibility or to claim any easement. Boards that order owners to tear out their longtime improvements -- even those that benefit the association -- demonstrate their own incompetence. Pride in ownership should be encouraged, and boards that work with owners rather than against them have the best success rates.

One method of dispute resolution available to homeowners is contained in Civil Code Section 1369.530. Begin by discussing your situation during the open-forum portion of your association’s next board meeting. Demand that your comments be documented in the meeting’s minutes. If you are not satisfied with the outcome, Section 1369.530 allows you to make a written “Request for Resolution.” Whether accepted or rejected, that procedure must be followed before either party can bring an action against the other in Superior Court. But such a request is not necessary for a Small Claims Court action, which is another option.

It appears that an owner’s contribution toward maintenance within your development is irrelevant. When your neighbors ask what happened to all your beautiful landscaping, simply tell them the board ordered it removed. Owners unhappy with how the board is operating may decide to serve on it themselves.

Send questions to P.O. Box 11843, Marina del Rey, CA 90295 or e-mail noexit@mind spring.com.