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We want to clean up the property next door to our association. The association does not own the property. It’s less money to just have it cleaned up compared to getting the current owner to clean it up. We would have permission from the owner. As a board can we approve or do we need to advise all the owners for their input?

Written by submitted anonymously on . Posted in Feature, Questions & Answers

My opinion is that the Board of Directors of the Association can agree to clean up adjacent property, with adjacent owner permission, as long as they determine that it is in the best interests of the Association.


This is not a decision needing owner approval unless the governing documents require such approval.


David G. Hellmuth
Attorney at Law
Direct dial: (952) 746-2107
dhellmuth@hjlawfirm.com
8050 West 78th Street
Edina, MN  55439
Phn:  (952) 941-4005
Fax:  (952) 941-2337
 
Most sets of covenants will have a description of the things upon which association funds can be spent.  If the covenants provide that the Common Expenses are limited to matters related to the Common Areas and Association operation, then spending money on property located outside the boundaries of the Association would probably not be permitted.  If the covenants have a broader description of Common Expenses, then such expenditures may be permitted. 
 
In any event there would have to be money in the budget to cover the costs.  If the owners are required to vote on the budget, their approval of this expenditure or category of expenditure  would have been necessary. If they don’t have to approve the budget, then if there are funds within the budget to cover the expense, the Board could make the decision.
 
The cost may also be a factor if the by-laws have a spending limit on the Board. 
 
While this is not the yes or no answer the Board would like to see, it does cover the issues.  My philosophy is always that more disclosure is better than less disclosure.  If there is a concern on the part of the board that the owners might not approve, then the Board, as the representative of the owners, probably should be doing it without owner input and approval.
 
Thrasher Buschmann & Voelkel PC
Stephen Buschmann
151 N. Delaware St. 
Suite 1900
Indianapolis IN 46204-2505
(317) 686-4773
buschmann@indiana-attorneys.com
 
As to the question asked, that is a matter the Board can approve; all homeowners need not be asked for approval. I would also suggest that the permission from the neighboring property’s owner be in writing and include an indemnification of the Association for any harm or injuries it may suffer during its clean-up. I’d also make sure that the Association’s insurance will cover anything that happens while cleaning up the neighbor’s property (or consider getting a rider).

Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
It depends upon your documents.  Generally the Association may
undertake the cleanup of the adjoining property in accordance with its
documents with the permission of the owner.  However I would strongly
suggest that the Association enter into an agreement with the property owner
granting the permission and agreeing to hold the association harmless for
any damage to the property or injury to any person who enters the property.
I must also caution the Association that this may become a habit
with the landowner not to maintain the property knowing that the Association
will eventually clean it up.
An alternative is that many municipalities have property maintenance
ordinances that require a property owner to maintain its property in good
condition.  Filing a complaint with the code enforcement official may get
the job done for you and the cost, and if the town does the work or hires
someone to do it, becomes a municipal lien on the owner of the property.  

Kenneth D. Roth, Esq.
Marchetti Law, P.C.
900 N.Kings Highway, Suite 306
Cherry Hill, NJ 08034
kroth@marchettilawfirm.com
Tel: 856-824-1001
856-414-1800
Fax:267-219-4838
There are several variables that need to be resolved to know whether spending the Association’s money is appropriate and lawful in this case.  First, while you state that the adjoining property needs to be “cleaned up,” you do not indicate whether this is a matter of cleaning brush, or whether there might be old cars there, perhaps an old barrel that held an unknown substance, etc.  If there is any chance that there is something like old vehicles, in connection with which you do not know who holds the title, or any materials that might constitute a “hazardous substance” under federal or state law, we would recommend against becoming involved in any way, since the possibility of serious liability is much too great.
 
Assuming that the issue is limited to cleaning up overgrown vegetation and the association has written permission from the owner to undertake the cleanup that details exactly what the owner is agreeing to allow the association to do, you need to ask two additional questions.  First, do the governing documents permit the Association to expend money for this purpose?  Typically there are two places to look for an answer to this question.  One would be in a provision that refers to the budget and the purpose of the expenses the association can include in the budget.  Secondly, there is usually a section of the bylaws setting forth the duties, powers and authority of the board.  In some instances these are stated permissibly, in other words suggesting that the board has, at a minimum, these powers.  Other times the section of the bylaws is stated in such a manner so as to limit the powers of the board.
 
Finally, there also needs to be a determination by the board that this is truly an association matter.  Is this to help a small portion of all the unit owners, but does not impact the vast majority of owners?  Is there a board member that is impacted and that is why the board is considering this action?  How much money would actually be spent?  If the amount is relatively nominal given the scope of the association’s budget and it is for the general benefit of the association that suggests one direction, but if it benefits few owners or it were to particularly benefit a member of the board, it suggests a different answer.
 
There are enough complexities in this issue that we would urge the board to consult with legal counsel before taking action.

 
J. David Ramsey
Becker & Poliakoff
1776 on the Green
67 Park Place, Suite 702
Morristown, NJ 07960
Tel: 973.898.6502
Fax: 973.898.6506
It sounds like you are asking whether the Board would come under legal attack from owners for using Association funds other than for obvious Association purposes. That depends on the relationship between the adjoining property and your property. For example, a Board that makes a charitable contribution to a community garden located outside the boundaries of the property might be similarly questioned. However, in both cases the Board could reasonably argue that keeping up appearances in the surrounding community maintains property values for all of the homes in the Association, so it is an appropriate corporate purpose.
 
Kenneth Jacobs 
Smith, Buss & Jacobs LLP 
733 Yonkers Avenue 
Yonkers, NY 10704 
914-476-0600 X4102