Board Member Poaches Condo Common Area

How right is it for a board to approve the poaching of a condo common area by a board member?

This week, we’re going to talk about the legality or otherwise of a member of a board planting in a designated common area and the board’s approval of this violation.

This might seem like such a no brainer -  I mean, an owner has no right to plant in the common area of a condo. But according to some experts, the decision might require a little more nuance, which might not be such a bad idea.

Joe White, who’s represented different associations for several Philadelphia area condo associations, has this to say about the situation.

"I'm not sure exactly what the facts are here," he stated. "But based on the reader's question, this is an unpermitted trespass. What the condo owner has done is said, 'I'm going to try to expand my dominion and control over the common HOA property so people think it's my garden.' But it's not.”

White also contents that "The other board directors are legally and ethically required and have a fiduciary obligation to tell the director to remove the plants or to restore the property to its original condition," and that "This is an attempt by a board member to colonize common area property for the board member's own use. This is self-dealing at its worst." Read: 

Robert E. Ducharme, the owner of Ducharme Law, Stratham, N.H. takes a different view. In his words:

"I think this is fine," he stated. "Condo units are a person's home; they may be cookie-cutter, and uniformity is key to increasing the value of the units. But if somebody does something nice to increase the value, there should never be a problem with that.”

In his words "We're all adults, and usually the [governing] documents say you can't do anything to the common area without the permission of the board. But if someone plants a bunch of flowers in the common area, people will drive home and see them and say, 'Aaaah, I'm home; this looks nice.' As long as the person who planted them is tending to them and the flowers look nice, why would anybody have a problem with that?”

He also stated that "I had one association where there were townhouse-style condos in a row. One owner planted, well past their rear deck, beautiful flowers everywhere. Another owner was upset and pointed out that was a common area. A local real estate agent was selling a unit and said it looked beautiful and increased the value. Just because the owner didn't have permission doesn't mean it's bad."

Ducharme is actually referring to pretty flowers. One has to wonder, would he have given a different answer if the question was about nonflowering plants like zucchini, cucumber or tomatoes?


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