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Condominium Issues

Your rights and responsibilities as a condo-owning gardener

Condominium and Homeowners Associations: Restrictions

For the most part, America is a free country. You can grow pretty much what you want as long as you don't hurt anyone or cultivate controlled substances. But if you live in a condominium or a planned community, control of your container garden may rest outside your hands, and in those of the condo board or homeowners association. If you want to keep your home - don't fight the system. Find out how your local governance system operates and talk to your neighbors about your plans for beautification.

How do you know if there are restrictions on container gardening in your neighborhood or complex?

  • Ask your neighbors about the homeowners association or condo board's by-laws.
  • Check your deed for covenants, conditions, and restrictions (CC & R's), which may define the relationship between the individual owners and the association or board.

 

What do you do if you have moved into a place you like, that has no restrictions against container gardening, and then the governing body enacts a rule prohibiting such an activity?

According to the Massachusetts court in Noble v. Murphy, rules or by-laws set by the associations governing body are not given the kind of leeway in court as are recorded use restrictions in the deed or other instrument. Obviously, since you did not move in with any knowledge of the later enacted restriction, courts will try to protect you against the "unfettered discretion" of that board in enacting its own set of rules.

Therefore, if it comes to a vote and you can't persuade you fellow members that a prohibition on container gardening is wrong, you may have an easier time in court when challenging a board-enacted rule than when you're going after something in the deed.

But don't let it come to that. Suing your neighborhood association or board is no way to make friends in your community. If your plans are causing stress to your neighbors - find out what it is about your garden that they find offensive and try to work together to come to some kind of agreement that will let you garden without disrupting the peace.