As homeowner associations age, certain illegal “additions” to the common area tend to creep in like storage sheds, fences, patio roofs, awnings and gardens. These add ons flourish when the board is asleep at the wheel or disinclined to challenge the offenders. Eventually, a board is elected that understands things have gotten out of hand and a campaign is begun to rein in the offenders. Most of the offenders will claim that a prior board or the developer gave them permission.
While the board has a fair amount of power, it has no authority to allow individual owners exclusive use of the common area unless an appropriate majority of the members approve an amendment that allows it. So, to tie up these loose ends, a list of violations must be compiled. If the type of violation is widespread, it’s best to grandfather it rather than face an angry mob. If the violation is unique and glaring (like that 8′ pink flamingo), put it on the It’s Gotta Go list.
All violators should be given written notice of their violation together with a request to remove it. All requests should be done with respect, cite the reasons it doesn’t work and offer an opportunity to appeal. If the board has a number of similar violations, it needs to be careful not to make radically different deals with different owners. In other words, be as consistent as possible to avoid the perception of playing favorites. While the board may compromise, the burden of that compromise should be placed on the petitioner. That means, the owner needs to make an offer that removes the violation at the owner’s expense. The board can compromise on the timetable but not whether it stays or not.
To avoid future misunderstandings or misinterpretations of the governing documents, it best to enact a Board Resolution or amend the governing documents (amending is better) which outlines the issue clearly. This should include these conditions:
1. The board has no authority to grant an owner’s exclusive use of the common area. It may, however, grant permission to modify a limited common area which is used solely by one owner such as a deck or patio.
2. Prior written approval of the modification must be obtained.
3. The modification must receive regular and adequate maintenance, repairs and replacement by the owner. “Regular and adequate” is in the board’s sole discretion.
4. Cost of repair of damage to common area landscaping and structures caused by the modification is the sole responsibility of the owner.
5. If not properly maintained and the owner does not bring it up to standard within 30 days after written notice from the board, the board has the authority to have the addition removed and get reimbursement from the owner.
6. The HOA has no maintenance responsibility for the addition.
7. A description of the modification and the conditions of approval will be recorded against the unit title to give notice to future purchasers. Document preparation and recording fees are to be paid by the owner.
Having this kind of procedure in place protects the interests of all the members and give clear guidance to the board. Don’t leave loose ends that will unravel the HOA’s appearance standards. Tie them up with accord. Written by Richard Thompson