Q. I am a condo unit owner with a patch of HOA-owned grass near my unit that was overlooked for many years. Over the past six years, I have slowly landscaped the area in accordance with the landscaping of the complex. No one from the board has said anything to me.
The board president has a personal vendetta against me, however, and now, after [the self-gardened area] was completed, he has informed me the landscapers have been instructed to remove all plantings, and replace them with two holly bushes. The plantings that I put there are beautiful, and the area is 100 percent improved. Putting the holly bushes there will decrease the beauty of the area I landscaped and waste HOA funding that many other areas need. Is there anything I can do?
— Upset Resident
A. “Given a situation where common area landscaping is not planted or maintained,” says attorney Howard S. Dakoff with the Chicago-based firm Levenfeld Pearlstein, LLC, “it’s understandable that a homeowner might choose to install some plantings within view of their window at their own expense over time; that’s better than looking at unmaintained dirt and stones. However, all property outside of the legal boundary of a unit is a common area in a homeowners’ association – and an association’s declaration and bylaws will state that the association shall maintain, repair and replace the common areas. Such authority would include landscaping.
“[If] a homeowner modifies common area property without the consent of the board, he does so at his own cost – and with the risk the board may one day remove or replace such plantings at a time of its choosing, since the declaration invariably states it is within the discretion of the board to maintain, repair or replace landscaping within the common areas.
“If a homeowner wants to modify common area landscaping, it’s best to discuss such actions with the board first, and enter into a written agreement regarding the maintenance, repair and replacement of the landscaping so the parties fully understands under what conditions the landscaping may be removed or replaced.” n