THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, April 6, 1996 TAG: 9604040261
SECTION: REAL ESTATE WEEKLY PAGE: 04 EDITION: FINAL
COLUMN: Common Ground
SOURCE: G. Robert Kirkland and Michael A. Inman
LENGTH: Medium: 97 lines
My mother recently moved into a condominium. She has always been a gardening person. She was recently given a notice that the flowers she had planted around her front door area were in violation of the rules.
Also, they said that flowers could only be on her balcony. She had a gardener help with this planting so the flowers would bloom continuously.
Is there any rule to have to ``de-plant'' these flowers? These are not balcony pot flowers. Please help me explain this situation to my mother.
We would be most pleased to help you explain to your mother because this is not the fist time this issue has come up, and, with spring having arrived, it will no doubt inspire others to consider the same type of project.
The answer lies in the authority to control the common areas surrounding the condominium.
You did not identify the type of condominium in which you mother resides, but as a general rule all the grass area and landscaped areas in a condo are part of the common areas, which are under the control of the board of directors for the benefit of all the unit owners collectively - but not individually.
Your mother owns her unit and she has the right to decorate that as she sees fit. The balcony is either part of the unit or a limited common element. Generally, one has the right to do as one pleases within limits, in the limited common areas. However, the common area is not subject to individual uses - even those that are intended by a well-meaning unit owner to beautify the area for the benefit of all.
Consider that there is little difference between landscaping in common areas and setting up a bird bath with associated plantings and maybe a bird house along with it.
It is relatively easy to understand that taking control of the portion of the common areas for the placement of such objects without the consent of the board of directors would probably be against one rule or another.
The concept is that, regardless of the intended benefit of individual activity, the common areas are reserved for improvements or landscaping contracted for or approved by the board of directors of the association.
It is not allowable for any unit owner to take control of any portion of the common areas for an individual project and, furthermore, the board does not have the power to approve individual uses of the common areas to the exclusion of other unit owners.
Focusing for a moment on the issue of planting, we are familiar of several instances where this issue has come up before. One instance involved a court decision by a Virginia Beach circuit judge.
In that case, a unit owner planted, in the darkness of night over a period of time, approximately 150 different plants around and about the condominium building.
He was given numerous warnings by the boards that he should cease his planting operations but he insisted that he was right to do so and was enhancing the quality of life for all who lived there. Unfortunately, the plants were not in keeping with the landscape plan of the condominium and could have posed maintenance difficulties for the landscaping contractor in charge of maintaining the association's grounds.
Eventually, the planting would have driven up the cost of the landscaping contract, which is something the board must consciously decide to do and not be forced to do. When this individual refused to cease his project, the board took him to court.
The judge ruled, as we have stated above, that the common areas are the province of the board of directors and no one has the right to take control of them for personal project. He was ordered to remove all 150 plants.
Prior to going to court, the board had offered to sit down with this individual and work out a plan that would allow for some of the plants to remain and others to be planted in harmony with the other landscaping on the condominium grounds, but he refused to do so.
The concept allowing unit owners to enhance the appearance of the entry way of their units or other adjacent areas has been accomplished very successfully in some local condominiums.
In one case, the board commissioned a landscape architect to work up three different potential plans so that individual unit owners, if they so chose, could adopt one of the plans and carry it out at their expense.
They would also have to sign an agreement that in essence donated the plants to the condo association upon their being installed so that the maintenance responsibility could be assumed by the association and there would be no right to remove the plants at any later time.
This concept is an excellent plan with regard to landscaping additions to the association's common areas and creates a ``win-win'' situation for everyone.
Perhaps your mother can use this idea to accomplish her goal of beautifying the area around her unit. Hopefully, you and she will know understand the ``rules of the road'' with regard to the use of the common areas. MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues and are affiliated with the Southeastern
Virginia chapter of the Community Associations Institute. Send comments
and questions to them at 2622 Southern Blvd., Virginia Beach, Va. 23452.
To submit questions by phone, call 486-7265; by fax: 431-0410.
by CNB