Memo to Lender: Please Landscape My Neighbor’s Yard! Ron Housh, Attorney

The following scenario is becoming more familiar to community associations. A home in a pleasant residential neighborhood has been abandoned by owners unable or unwilling to continue to make their mortgage payments. Lenders take months, if not years, to complete the foreclosure process during which time the property becomes an eyesore. The frustration heightens for a community where lenders take title to a property and then take months or years to get the property re-sold. It is easy to empathize with frustrated homeowners and communities that try to keep up a neighborhood’s appearance during epidemic bank foreclosures and abandoned properties while ignored landscaping quickly undermines the curb appeal of the community and further depresses real estate values.

What are the practical and legal options available to an association facing this dilemma?

Should Board members and other frustrated owners take matters into their own hands by organizing weekend “work parties” to clean up distressed properties? That may sound like a practical approach; however, entering onto and altering your neighbor’s property no matter how well intentioned without the permission of the owner constitutes a trespass.

Some associations do have “self-help” provisions in their governing documents that permit Board action in dealing with covenant violations. Most association governing documents expressly require that owners properly maintain and landscape their yards; a failure to do so constitutes a violation affording the Board the right to take remedial action. Typically these “self-help” provisions require advance written notice and a reasonable opportunity for the owner to correct the covenant violation.

What options are available when there are no such express “self-help” provisions?

Here are two commonly advanced arguments.

Providing reasonable notice to the owner/lender prior to entering onto the property to perform landscaping or related work is defensible and would likely hold up in court. The common sense, rational argument is that the Board acted reasonably and in furtherance of the interests of the association and all of its members (including the owner of the distressed property) in performing the work.

Alternatively, there are those who view with disfavor any unpermitted invasion of property no matter the reason and argue that a court order must be sought expressly allowing entry on the property for the specifically described work. Of course the legal process can be costly and take weeks, if not months. The cost/benefit ratio may be difficult to explain (or defend) to association members.

The costs and time involved in the legal process make the “self-help” approach much more appealing. Where governing documents do not expressly include “self-help” provisions, legal issues can be reduced by placing great emphasis on advance notice, documenting the work performed and limiting the scope of the work. Advance notice of the planned work should, at a minimum, be posted on the property and mailed to the owner/ lender by certified mailing. It would be prudent to research title records to find all mailing addresses for the owner/lender.

It should be noted that while the property is in the foreclosure process, title still remains in the name of the owner. The owner might be willing to grant written permission to the Association to enter the property for the purpose of maintaining the landscape. Upon learning that an owner may abandon the property it would be prudent for the Board to elicit from the owner written permission to later enter the property to perform landscaping.

Whenever entering on someone else’s property—with or without permission—there is the risk of an accident or unintended damage. When the scope of the work to be performed is limited, the corresponding risk of accident or unintended damage is reduced, if not eliminated. For example, there is seemingly little risk of accident or damage resulting from weeding, mowing and trimming. However, going beyond basic yard maintenance will carry with it increased risk. “Before and after” photos can be particularly effective in preserving the record of the reasonable actions taken by or at the direction of the Board.

Issues surrounding property rights can stir up strong reactions. Engaging association legal counsel in advance can often lessen the risk of costly legal battles down the road.

may/june 2011 | Community Associations Journal

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