A giant shrub trimmed to resemble a stock car? Shutters painted an eye-shattering fuschia? Eight not-so-tiny reindeer blitzing across the roof? Some people's idea of design heaven is almost certainly someone else's idea of aesthetic purgatory. In co-op and condo communities, where hundreds of different individuals live (and decorate) side by side, aesthetic conflict is not just a possibility—it's a reality.
In most instances, one look through the community's governing documents will settle any conflict. Sometimes, however, disagreements can become more heated, leading to discontent between unit owners and management—discontent that can lead to unwanted lawsuits and discord in the community.
Looking Good, Feeling Good
Most of the time, there are no good guys or bad guys when a disagreement over community aesthetics occurs. Property managers and boards are trying to protect property values and the interests of all the community's residents when they set limitations. Residents often are simply expressing themselves in ways to which they are accustomed or are simply unaware that a certain bylaw exists that prohibits giant lawn gnomes or lavender siding.
When it comes to a co-op or condo community, nothing has more authority or holds more power than the governing documents. This is a homeowner's bible in both preventing and settling disputes. They are the bylaws and guidelines that help a community live in harmony.
"The rules are there to keep property looking well and to prevent having ridiculous objects around or something that might offend neighbors," says Stan Rothenberg of C&R Realty and Management Co. in Englewood Cliffs. "The holidays can be especially problematic. People have to be careful, and it's important to not upset anyone."
By maintaining the highest standards of upkeep, the board also ensures that property values remain high and continue to grow. "The board is not trying to restrict people from expressing themselves or enjoying their homes," Rothenberg adds. "They're trying to avoid situations that could be detrimental to the community or cause political conflict or offend."
This is not to say that changes cannot be made. No one wants to live in a cookie-cutter world with no hint of individuality. Within the recognized framework, residents have expansive freedom to show their design strengths.
Inside the residence, unit owners or shareholders can do just about anything they want so long as it does not affect the structural integrity of the building or pose a potential problem for neighbors. All significant plumbing, electrical or other construction work, however, must be done through licensed professionals and documented as such. Residents also must secure the proper permits and the work must pass inspection after the job is completed.
When it comes to a unit's exterior, every community and every set of governing documents is different. Some homeowner associations may have rules regarding greenery and shrub height. Others may have rules about temporary lawn ornaments or sports equipment. Others may have guidelines for paint color or mailbox designs. Every community is a design-world unto itself. "There's a very broad scope," Rothenberg says.
One Man's Art
Sometimes, though, that scope can get blurred. Problems can rear up almost anywhere. Outside, a resident may have patio furniture that's too big or in the wrong place. Satellite dishes could be attached to the wrong area of the unit. There could be a planter in a common area or blocking a hallway.
"In high-rises, it's mostly hallway issues—people putting welcome mats out that are big and bulky and may look horrendous," Rothenberg says. "In townhouses or communities, it could be anything. In the summer, for example, people have a tendency to put little yellow pools in front of their houses for their kids to play in. Often that's restricted." And while they may seem significant to the unit owner or building manager at the time, these are not permanent issues. They all can be corrected quickly and easily with minimal fuss.
"Most people aren't aware that they're breaking a rule," Rothenberg says. For many new shareholders or unit owners, the prospect of reading all the new paperwork handed to them, from the bylaws on down, can be daunting. A resident may miss important elements of how the community functions and operates, whether it's the rules for annual meetings or how high their lilac bush can be. Not knowing the rules and regulations is the biggest cause of strife, but one that is easily avoidable.
Knowing Your Rights
At times, though, knowing those rules and regulations does not always mean the resident agrees with them. "Conflicts should be solved by the 'rule of reason,'" says Dennis Estis, a partner in the law firm of Greenbaum, Rowe, Smith & Davis LLP in Woodbridge. "If a board's actions are deemed reasonable and aren't contrary to the bylaws themselves, then they should be fine."
Occasions arise, however, when the unit owner may feel his or her fundamental rights are being brought into question. "If there's a regulation in place that says you can't hang anything outside your unit but someone hangs a flag, it can become an issue of patriotism," Estis says. "That's when an issue becomes very difficult to talk about and it often grows way out of line from where it all originally began."
Stopping Trouble Before It Starts
It is always best to get these issues resolved before they can escalate. "Boards and managing agents have to be proactive to prevent these situations from arising," Rothenberg says. "Education is very, very important."
Estis agrees. "People should look at what's in the master deed and bylaws," he says. "When people bought their units, what expectations did they have? Each unit owner should have an idea of what status and rights they have on the day they bought the property."
Not only should all new unit owners or shareholders carefully inspect their governing documents, the documents themselves should be as thorough as possible. "The documents should spell out the 'do's' and 'don'ts' very specifically," Rothenberg says. "If it's not written down, there could be problems later."
A community's original documents will not always stand the test of time either. What was comprehensive and thorough in 1975 likely will not cover all of the potential issues out there today—from satellite dishes to motion-sensor lighting.
"The first governing documents are prepared by the developer," Rothenberg says. "They can't take into account everything that will arise in a building or community. When we take over a property, we look over the documents to see if there is anything missing or anything that should be added or amended." Most boards often do not take the time to do this kind of a review, but an omission could cause them legal grief later on if a rule's wording or intention comes into question. Being thorough will pay off in the long run, he says.
If the rules are firmly in place and residents still are unhappy with certain restrictions, then management needs to take a new tact. As with any conflict, talking it out is always a good beginning. "The best approach is to get on the phone with the person and explain the situation to them," Rothenberg says. "If that doesn't work, then management should write a nice, polite letter, then wait for a response. If that doesn't work, then have an attorney write a note—not a nasty one, just one that explains the situation. I've found that the nice approach is much better."
If these initial lines of communication still don't bring about a resolution, then more formal discussions may be necessary. Estis says that most communities will have an alternative dispute resolution (ADR) regulation in place that lays out a plan for negotiation. Some associations will have a volunteer negotiator in place while others will have paid conflict resolution specialists on call. "You want to fix the problem without making a big deal out of it," Estis says.
In New Jersey, state law requires that some form of ADR be considered as an alternative to litigation in resolving disputes.
Fining can be another option. "If you have the power to fine, then do it. But try to avoid serious sanctions if you can," says Estis.
The last option, the one to avoid as often as possible, is litigation. In most cases, suing never turns out well for either party, instead resulting in serious expenditures of both cash and time. Estis has seen seemingly trivial cases go all the way to the state Supreme Court. "That can become expensive for whomever loses the dispute because very often the successful party can recover lawyer fees from the unsuccessful party," Estis says. "Assuming the dispute does not go to a question of fundamental rights, the unit owner can be subjecting themselves to significant costs." Estis recalls that one of his clients—engaged in an aesthetic dispute—ended up owing $80,000 in legal fees by the time the conflict ended. "It wasn't an issue before, but the person involved made it an issue," says Estis.
If a community finds that certain arguments are cropping up with increasing frequency, they may want to amend the rules to reflect that trend. "The documents should speak for themselves," Rothenberg says. "But if that's not the case, the board has a right to put rules into place that will."
The board should keep in mind, however, that they need the majority of unit owners or shareholders to approve such changes. It all comes back to what is best for the community as a whole. Rothenberg offers the following advice: "It's always important to pick and choose your battles." Before the argument over the flying reindeer takes flight, it might be best to consider the merit of those words.
Liz Lent is a freelance writer and frequent contributor to The New Jersey Cooperator.