Unit Owner’s Overgrown Shrubs Causes Condo Eyesore

C.L. from New York writes:

The Board of Directors self-manages (no community manager or management company) our very large condominium complex. A question/problem has come forward that I would like your opinion on. The Board inspects common areas around the entire complex. Our offering plan states no plantings are allowed on common ground without permission of the Board. The guidelines state you may plant in the 3′ area around your unit if you choose. Otherwise, the association simply plants grass and maintains the area. If we find a violation we send pictures and a letter stating the unit owner must conform with rules of community giving a certain time frame to correct or we will at a cost to owner.

We came across a unit that has a terribly overgrown shrub around the perimeter and other over grown shrubs all over the property adjoining the unit. We sent a letter with pictures of the violations to the owner requesting they remove the shrubs from the common area and trim in the 3′ area as the rules designate. The owner produced documentation that showed permission from the Board back in 1983 to plant small shrubs and claimed “it’s not her fault they grew so big”. The owner also stated she will not remove them.

We informed the owner that the rules require removal of the shrubs and as managers of the property we are enforcing the rules as per the offering plan guidelines. Either the unit owner removes and trims or the association will at a cost to the unit owner. The unit owner said she will get an attorney since she purchased it this way and “likes her privacy”. That is why she “bought that unit since no others are like it with plantings like that.” We have contacted our attorney as well. I would like your opinion on this.

Mister Condo replies:

C.L., thanks for writing. Since the unit owner has already claimed to be heading down the attorney path, the Board will have little choice but to involve the association attorney as well. I am hopeful that this unit owner’s attorney will instruct her that she would likely not prevail in a lawsuit but that is for the lawyers to decide. Keep in mind that I am not an attorney and I offer no legal advice.

My friendly advice for the association is that the condo documents likely spell out the role of the Board in enforcing guidelines and that the Board is likely well within its rights to enforce the standard. However, the Board does need to take care that it is unilaterally applying such enforcement measures, meaning to say that if the Board is enforcing this standard for ONE unit owner, it has to enforce this standard for ALL unit owners. Otherwise, the Board could be accused of discrimination and that could be a very expensive lawsuit, indeed.

From what you have told me, the owner’s argument of having “purchased it this way” and “liking her privacy” are not valid arguments. She would need to cite in the by-laws where she has the right to disregard the standards. I highly doubt she will be able to do that and her attorney will likely advise her of the same.

One other item to consider is any local or state laws regarding the matter. I doubt there are any that apply but there are some states (Florida, for instance) where by-laws that are unenforced for several years cannot be restated years later. In other words, if this violation has been in plain sight for a certain number of years (these shrubs didn’t grow so large overnight) and no action was taken, it may be too late to take action now. That doesn’t appear to be the case here but it is something to ask your attorney about if there are any questions.

Good luck. I am fairly certain you will prevail if it goes to court. However, my experience tells me this is likely to be settled well before then.

Leave a Reply

Your email address will not be published. Required fields are marked *