BY: J. DAVID RAMSEY
Q. 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?
A. 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.