In the classic arcade or Atari game “SPACE INVADERS,” the objective for a player is trying to shoot as many aliens and avoiding their attacks. Like problems in an association, the aliens come at you in waves. One common problem we deal with in associations involves owner complaints about their neighbors placing items on common areas – generally because they view them as unsightly – and they want immediate action. This prompts management or the board to contact the association’s attorney to find out what, if anything can be done.
The Problems
There are several issues with owners placing items on, or taking control over, common areas. Chief among these issues involves the covenants themselves. Generally speaking, owners are limited to placing items on or exercising control over areas that are part of their unit or lot or in which they have exclusive use or control over (often called a limited common element). This is set by the Declaration and the Plat. In a condo, owners are prohibited, with limited exceptions, from taking over additional space outside of their platted unit and assigned limited common elements. For condominiums, a number of cases have made it clear that law states that owners have no right to exert control over areas that are common elements. This technically prohibits owners from putting pavers next to a driveway to extend it, enlarging a patio or even placing a step up to a patio or deck if those areas are not listed as limited common elements. For non-condominiums, the rights of owners are based in large part on the declarations, which usually provides that nothing shall be done or kept on the common areas without the board’s consent.
Another, generally more important issue involves safety. Especially in the case of condominiums, the placement of items in hallways or on the common elements can create
tripping hazards that can cause aches, sprains, breaks or worse. Further, if the items are inside, they can represent fire hazards, which can lead to fines from the fire marshal or the municipality.
Additionally, the placement of items outside can impact performance by contractors. Items in the grass or on a driveway can damage landscaping and snow removal equipment. Likewise, they can become projectiles that hit people or property. It can also cause insurance related issues such as cancellation of policies or increases in premiums.
The Fix
Nearly all associations have an inherent power to fine violators. The fines are generally based on a fining (or enforcement) policy adopted by the board. The fines are supposed to equate to the reasonably anticipated harm to the association caused by the violation. Before a board can officially levy a fine, it must provide the owner with notice of the violation and an opportunity to participate in a hearing. Generally, this requires the association to provide information about the complaint and the right of the accused owner to present evidence and testimony to
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