Question: We have owned a condo on a local golf course for seven years. There is a beautiful waterfall fountain/pond on the property that has been there since the complex was built in the early 1970s. We, along with the owner before us, took good care of it and consider it to be an integral part of our living experience. We are not sure if it is in the association common area, but the association has never taken any steps whatsoever to care for the fountain. We recently received a letter from the association board of directors that they are turning off the water to the fountain because the cost of the water is being borne by the association. They also claim that they need to clean out the water to prevent a problem with standing water and West Nile Virus?! Our concern is their actions will de-value our property, as the fountain/waterfall/pond is a very attractive asset to the property. Do we have any recourse on this issue?
Property manager Griswold replies:
You may not have any recourse, but you should do some homework and find out. If the location of the waterfall fountain/pond is on the association property then they have the right and authority to make that change. So check your governing documents and the condominium plan to make sure who is responsible for this particular element of the property. You could also formally offer a written agreement under which you would underwrite the ongoing costs of proper maintenance, but the board of directors may not be interested in such an arrangement, as it creates a grey area if there are ever any problems. Another legitimate concern would be that such a practice might establish a precedent that the board does not want to support throughout the project. In other words, you may be a responsible homeowner and fulfill your commitment, but the board would have to treat others making similar proposals in the same manner, and they may not be as diligent as you are in properly maintaining components of the association, which would have negative repercussions for the association. You should also consider putting your concerns in writing in a positive manner. I would suggest that you point out the loss of this feature to the community rather than strictly recite concerns about your own personal interests. My experience is that most boards are likely to be swayed by a community perspective than simply your own loss of value, which is not the paramount concern of the board.
Question: We have a small apartment building, and we pay for the garbage pickup. A tenant did some “spring cleaning” and completely overwhelmed our bins, including mattresses and box springs and broken stereo shelving. The garbage collection company informed me that “if it’s not in the bin” I have to arrange for special pickup and pay for it. I asked the tenants if they could pay for the extra charges and they replied, “It’s not my problem, you provide the garbage pickup!” They do admit it is their stuff. Am I stuck with the bill?
James McKinley, an attorney for landlords, replies:
Although your agreement states that you are responsible for garbage pickup, you are probably not responsible for large items your tenant is attempting to dispose of even though it is your Dumpster. Without seeing a copy of the lease, it is difficult to give an opinion, but I doubt any residential lease implies that the landlord would be responsible for the disposal of large items such as mattresses, box springs and other items that don’t fit in the bin. If your lease does not specifically state that you are not responsible for the disposal of large items, you may want to modify the lease in the future. In your case, the tenants leaving large items that do not fit in the garbage bin should be considered littering in the common areas, and the tenants should be responsible for any additional charges required to haul these items away.
Steven Kellman, an attorney for tenants, replies:
I would have to weigh in here with James. I think that items like mattresses and box springs are not considered trash in the conventional sense. In fact, many landfills charge a separate fee for dumping mattresses, and often there are special rules about recycling large items such as mattresses and frames. Trash for everyday living does not normally include major hauling and dumping items. It appears that the landlord’s responsibility would be limited to the normal refuse generated by day-to-day living meant for the trash bin provided for the tenants. In this case, I think that the tenants are taking advantage of the trash service and trying to make it a free hauling, recycling and dumping service as well. This appears to be an inappropriate position to take unless the lease specifically provides for such rights, which I doubt it does. To maintain an effective and harmonious landlord-tenant relationship, both parties need to respect and not take any unfair or unlawful advantage of each other. In this case, the tenant should pay the extra charges, which would probably be much less than the hauling and landfill costs.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and James McKinley, principal in a law firm representing landlords.
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