In garden or townhouse style condominiums, a curious phenomena takes place: Certain owners feel compelled to commandeer the common area adjacent to their units. This takes on many forms. Some use it for personal plantings, sometimes even running irrigation systems through it. Some expand their patio or deck into it. Some build storage sheds in it or place hot tubs there. Some brazenly fence off "their" yard.
Another form of commandeering HOA space involves expanding personal living quarters into attic or crawlspaces when the architecture permits. Unit owners have been known to mole into crawlspaces to build wine cellars, extra bedrooms and storage bunkers. It's not uncommon to find certain residents growing "exotic plants" in the attic, out of sight of drug enforcement. Have you ever seen a strange violet glow coming from attic vents after dark? Aha!
Condominium unit ownership is usually defined as "from the decorated surface of the unit in." This creates a problem for folks that are used to digging in the dirt and redesigning their home. They are not likely to be comfortable within the confines of their unit. They crave what Hitler called "leibensraum", more living room. While these folks don't use guns and tanks when they expand, they often feel they have the right to take over whatever common area space adjoins their unit. And sometimes, the board agrees and approves them doing it.
The problem is, no unit owner or board has the authority to reallocate common area unless 100% of the members agree to it by amending the governing documents. A more practical consideration is that such modifications often impact the ability of the HOA to properly maintain the grounds and buildings. For example, improperly installed decks are a common source of dryrot to the buildings. Add on rooms in the attic or crawlspace cause additional intra-unit noise and fire hazard potential.
It is very important for the board to understand it's role as Defender of the Common Area. The common area belongs to all members and no one owner has the right to commandeer it. Preventing such aggression requires constant vigilance by the board. Once one unit owner is allowed to expand, others will feel so entitled. Soon, there will be multiple violations and the board will have a heck of a time trying to undo it all. Be watchful and preempt these moves early.
If the horse is already out of the barn and there are already multiple violations, it's time to determine the scope of the problem and prioritize the violations according to flagrancy. Curb appeal issues directly impact market values so violations of this kind you would want to deal with more aggressively. Violations like fencing, decks or storage sheds, or added rooms are the next priority. More minor offenses like owner planting beds, lawn ornaments, furniture and whirlygigs are lower priority.
If there are multiple violations of a common sort, it's best to address them simultaneously to avoid the "What about so and so? They have one too" defense. The board should have a cohesive strategy for responding to every violation. It's important that individual board members do not negotiate with violators or give them the impression it's no big deal because this will undermine the board's strategy for compliance. These violations are a big deal. Appeals should be addressed only to the board as a whole. That way, when the defense is presented and the board decision is made, everyone is informed.
Some owners may have a valid defense for their violation or have obtained written approval from a prior board (curses!!!). If so, the current board should try to negotiate a dismantling date, even if that date is when the owner sells the property. Whatever the outcome is, it should be formalized in a recordable document that is signed by filed against the unit title so future the owner and the board president and buyers are informed of the deal.
Commandeering HOA common area is bound to happen sooner or later in some form or another. It's up to the board to be aware and prepared to defend the common area from HOA commandos.
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Author: Richard Thompson
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