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Subject: What Is Allowed in Your Condo Backyard?
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HarryC1
(Vermont)

Posts:8


07/15/2019 12:19 PM  
I'm the President of a 5-year-old condo Association in New England. Finally all units have been sold and Developer Control is over. It's a pleasant, rural site with only four units, with 10 acres of land for the owners to share. Each unit has a 90-foot deep back yard of which part is mowed by the Association and part which is not mowed - approximately the half closer to the building is what is mowed. These 90-foot back-yards are officially Limited Common Element areas assigned to each unit. The only specification in our founding docs about how they can be used is that they are called "garden space". So, now, with 100% owner occupancy, there is plenty of interest in what uses can really be made of these LCE garden-space backyards. Can stuff be stored there? What can be planted? What cannot? Build a Gazebo? Burn trash? Fire Pit? Picnic table? There are divider-walls between the units of maybe 30 length. So, whatever use is made of the remaining 60 feet is viewable by the other units, and the public too. There is some general guidance in our founding docs but not enough. We want to create some additional guidelines on using this "garden space". Any experiences with what works and what does-not with this subject would be of interest and much appreciated from this great site. Thanks for reading!
AugustinD


Posts:1886


07/15/2019 12:30 PM  
Posted By HarryC1 on 07/15/2019 12:19 PM
We want to create some additional guidelines on using this "garden space".


-- Can you please clarify: Do you want rigid rules that the owners are required to follow, or do you want guidelines that the owners are not required to follow?

-- If you want rigid rules, then there has to be a basis for them in the Condo's governing documents (Declaration, et cetera). Also, the governing documents must give the Board the authority to establish rules pursuant to what is in the Declaration.

-- If you want guidelines that owners are not required to follow, have at it.

-- It might be best to quote exactly what the condo's Declaration says about use of this space. Alternatively, you can post the Declaration (or its relevant pages) as an attachment.
HarryC1
(Vermont)

Posts:8


07/15/2019 12:50 PM  
Surely I'll agree that only Rigid Rules make sense. Our founding docs yes do give our Board the authority to make additional rules, and revise the Bylaws & Declaration. As for the Garden Space, it is defined in our Declaration as follows: "Garden Space: Each unit is assigned a garden space as depicted on Exhibit B, said garden space designated as a Limited Common Element servicing the applicable unit" This clause is in the general section titled "LIMITED COMMON ELEMENTS" Exhibit B is the overall site-plan drawing which shows these LCE's labeled as "Garden Space". Hope this helps. Thanks for any replies.
AugustinD


Posts:1886


07/15/2019 1:17 PM  
Posted By HarryC1 on 07/15/2019 12:50 PM
Our founding docs yes do give our Board the authority to make additional rules, and revise the Bylaws & Declaration.


You wrote that your condo has four units. How many directors (on the board) do the governing documents require?

It's extremely rare that the governing documents of a HOA or condo give the Board the authority to amend the Declaration and Bylaws. Such a provision can lead to chaos, as one board could amend the Declaration, and then a subsequent board could change the Declaration back to what it was originally. And round and round the condo goes. Nationwide, nearly always a vote of the membership is necessary to amend, with typically 2/3rds or more "in favor" required for the amendment to pass. Do double check that a vote of the membership is not required.

Then again, this is a very small condo.

If in fact a membership vote is required, then without the membership vote, the only act the Board may take on this is to create rules that enforce a part of the Declaration or Bylaws. So far, it appears that your Declaration and Bylaws are silent regarding how one may use their LCE garden space. If the Declaration and Bylaws are silent, then I believe the Board may not legally impose restrictions on the use of this land.

If the Declaration is silent on use restrictions of LCEs, then I would be surprised.
HarryC1
(Vermont)

Posts:8


07/15/2019 2:35 PM  
Yes, to clarify, all members are indeed are required to approve Bylaw & Declaration changes. Each of the four units has one seat on the Board. Generally, if the Board approves something it is also OK with all members. Unless I suppose you disagree with your spouse or partner, but that has not happened yet in our small community. So far we have had 3 Declaration Amendments & 1 Bylaw Amendment, all approved by all members. The Board can make "rules" alone, by itself. I am looking for experiences, plus and minus, on use of these LCE backyards. Thanks to anyone for their thoughts.

AugustinD


Posts:1886


07/15/2019 2:57 PM  
Posted By HarryC1 on 07/15/2019 2:35 PM
Yes, to clarify, all members are indeed are required to approve Bylaw & Declaration changes. Each of the four units has one seat on the Board.


As a matter of law, if three board members want to do something inconsistent with the covenants, then they cannot lawfully do so unless the fourth agrees.

Generally, if the Board approves something it is also OK with all members.


To avoid litigation; threats of lawsuits; or conflict in general, when the board wants to do something inconsistent with the covenants, it's best to do a membership vote and, as required by the covenants, get unanimous agreement of the members.

Unless I suppose you disagree with your spouse or partner, but that has not happened yet in our small community.


What I have seen is one unit, one vote. In the case of a unit belonging to two or more owners (via marriage or whatever legal agreement), it is up to the owners of the unit to decide how they will vote. It is not the board's problem. In other words, of one spouse co-owning Unit B wants to vote for an amendment and the other spouse co-owning Unit B wants to vote against, they need to decide together what their final vote will be and cast their vote accordingly (or cast no vote at all).

So far we have had 3 Declaration Amendments & 1 Bylaw Amendment, all approved by all members. The Board can make "rules" alone, by itself. I am looking for experiences, plus and minus, on use of these LCE backyards. Thanks to anyone for their thoughts.


Thank you for clarifying. I suggest you send a letter to the members asking what restrictions, if any, they want to see on the use of their LCEs. Remind them that whatever they propose would have to receive approval of all four units (with each unit getting one vote). Some of the most contentious items here at hoatalk have involved fences, swimming pools, mobile homes, large trucks, abandoned vehicles, basketball courts, sheds, trees with invasive root systems, guest homes,signage, garbage cans, storing abandoned furniture in one's backyard, landscaping that is poorly cared for, and landscaping that is inconsistent with the rest of the neighborhood.

I am sure others will post to the thread in the next few days with suggestions.
AugustinD


Posts:1886


07/15/2019 3:00 PM  
Posted By AugustinD on 07/15/2019 2:57 PM
As a matter of law, if three board members want to do something inconsistent with the covenants, then they cannot lawfully do so unless the fourth agrees.


Oops; post-o. Change this to: As a matter of law, if a board majority wants to do something inconsistent with the covenants, then they cannot lawfully do so unless a membership vote is taken. In other words, just because the husband is on the board, this does not mean he represents the feelings of his wife when it comes to amendments.
HarryC1
(Vermont)

Posts:8


07/15/2019 3:59 PM  
Thanks for your reply - the below part is particularly helpful:

"Some of the most contentious items here at hoatalk have involved fences, swimming pools, mobile homes, large trucks, abandoned vehicles, basketball courts, sheds, trees with invasive root systems, guest homes,signage, garbage cans, storing abandoned furniture in one's backyard, landscaping that is poorly cared for, and landscaping that is inconsistent with the rest of the neighborhood."

Indeed, we have already asked for all members to submit their thoughts. And our docs seem to not specify that any new Board regulations clarify/support existing docs. But our efforts do seem related to things in our already weakly defined docs. We do have several of those relating to our Common Element, and a further definition that our Limited Common Elements are a sub-category of the general Common Element.
JeffT2
(Iowa)

Posts:479


07/16/2019 8:42 AM  
Check with your local government about what they allow and don't allow. They may already have restrictions on sheds for example, such as set backs from the property line. They may have laws about items on the list of things in Augustin's post. I would start with the local laws and build on it.

Keep in mind that limited common elements are common elements, even if assigned to a unit, and are ultimately under the control of the association. Limited common elements are not private property. The owner gets to use the LCEs, but can't do whatever they want. The declaration and rules still apply, just as they do inside someone's condo unit.

Your documents probably have quite a few general provisions scattered throughout that give the board and/or the association authority over the common elements, meaning you may already have enough to set rules from the board or rules from the association (without amending your declaration).
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Forums > Homeowner Association > HOA Discussions > What Is Allowed in Your Condo Backyard?



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