When is a Bench, More than a Bench?

A bench appeared in the common area adjacent to 1700. Here's a photo taken on October 10:

I'm not sure precisely how this bench got to where it is, but I suspect an owner put it there. I'm going to make that assumption for this purpose of this post. We have had an owner make "requests" of the board for a bench for a year or so. This was observed during the homeowner's forum of several association meetings. That owner also approached other residents and stated his and her case; I was approached.

On first glance, one might be inclined to say "well, if they want a bench, why not allow one?"

To answer that question requires an inquiry into the "ownership" of BLMH, and some of the definitions, and responsibilities of that ownership, and the role of the board in these matters.

The bench is in the "common area" of the association. The "common area" is one of three areas, which denotes ownership and responsibility. These are:

• Unit
• Common Element
• Limited Common Element

The "Unit" is owned and under the control of each owner. It's my property and it's everything contained within the walls of my dwelling space. Each owner is fully responsible for everything in his or her unit. However, "my responsibility" extends beyond the wall of my unit. The windows, interior of the walls including finish painting, electrical, plumbing, garage door, etc. If something in my "unit" fails, it is my personal responsibility to repair it. Further, if there is damage to the building or to our neighbor's unit, caused by any failure of something which is a part of my "unit" or by the utilities solely serving my unit, such as water, waste plumbing, electrical, etc., such repair is entirely my responsibility. That means, it is my responsibility to make such a failure right, and I will be obligated to pay any sum to do so. I will be required to pay for any and all repairs to my neighbor's unit and the building or "common elements," if failure of my "property" is the cause. It's not a choice; it's an obligation.

The "Common Elements" are anything which does not serve or service my unit exclusively. It's generally the grounds and everything outside of the interior of my unit. However, structural elements of the building, even if within my unit, are part of the common elements. (Note 1). Common elements are owned and maintained by the association. They are not "my" property. They are association property and the use of these commons elements is available to and shared by all unit owners. Maintenance, which is to say the cost of maintaining anything and everything in the common elements is paid by your fees, and is shared by the unit owners. The bench in the photo is in the common elements.

The "Limited Common Element" is the "grey area" which isn't in my "unit" and also isn't part of the "common elements." It's anything that isn't within the walls of my unit, but which may be there for the purpose of serving my unit. This includes my patio, the air conditioning compressor outside my unit (which I own, but is situated in the common elements) and all the plumbing and the electrical service that serves my unit. For example, once the water main leaves the "T" in the water closet in the garage, and through "my" water meter, that plumbing is my responsibility, because it serves my unit exclusively. It's of no matter or consequence if that plumbing is outside the walls of my unit. It is "my" plumbing because is serves my unit, and mine exclusively.

So, what is the significance of the bench?

The bench is in that area called the "common elements". It doesn't serve a specific unit, nor is it in any way connected to a unit. That means the bench in the photo is now a "common element." It is now a part of the property of the association. 

If a unit owner placed it there, have they, in fact, donated it to the association? It could be argued that in doing so, the unit owner has given up all rights to it. But have they? A bench in the common elements is now the responsibility of the association, as the association is responsible for all of the common elements. That means that your fees will be used to clean it, maintain it in good order, and, if someone should trip over it or fall off of it, our association would be expected to cover any medical claims.

I have heard owners complain to the board at association meetings that wood chips were left on sidewalks. They requested that maintenance "get out there with a broom" and sweep. What would make me think that the same owners will be out there maintaining this bench? The sidewalks adjacent to our units are as much our property as anything else in the common elements. 

If this bench is now association property, that means it can be used by anyone in the association at any time. Who has first claim to sit here? Another resident, or friends of the person who placed the bench here? Perhaps another owner will decide this is not the best location for a bench. Perhaps landscaping or maintenance will also decide that. Or management. Does the association have the right to move it to a better, or more advantageous location? Perhaps another owner would conclude it would provide more benefit if it was outside their unit. Why shouldn't or wouldn't they petition the association to move it, or simply get a few friends to move it? After all, if one person can decide to put a bench in a location, why can't or shouldn't another decide to move it? Why shouldn't we all have benches, or planters, or lawn furniture and decorations? After all, we are all equals here, and if the association doesn't manage these things, then it's entirely up to individual owners to make the decisions. 

You can see the problem, can't you? If the directors of the association decide to look the other way and allow the owners to make the decisions, that will ultimately lead to conflict. It will result in anarchy. 

Sometimes a bench isn't simply a bench. It's a symbol. It's a declaration. It's taking a stand.  I wonder if those who placed that bench along the walk, truly realized what they were doing?

If there are to be games at BLMH, wouldn't you, as an owner, like to know what the ground rules are, so you too can "play the game" and win?

Comments, Corrections, Omissions, References, Miscellaneous News

Oops. I had posted the wrong address; it was a typo and has been corrected.

Note 1. If an owner should modify the walls or other aspects of the structural elements, then responsibility for subsequent failures may pass to the owner. So, if I want to modify a wall, it might be a good idea to hire a competent carpenter and not simply "Joe the Handyman" to do the work. A few years ago, a unit owner decided to add a "built-in" bookcase to his or her unit. It was a nice idea. However, whoever they hired to do the job cut the structural supports. This was discovered by one of our observant maintenance crew before irreparable damage occurred to the building. The cost of repairs was the responsibility of the owner who authorized the original work. If a previous owner had done this, then the responsibility passed to the current owner.

Note 2. Our "rules and regulations" state that an owner may report a rules violation, and specifies the proper methods of doing so. I suspect the previous board has used this as the opportunity to avoid rules enforcement. It seems that if an owner doesn't report a violation, then the rules and regulations director, and the others on the previous board, made a decision to "look the other way." This is conjecture on my part, based upon the content of a rules violation letter I received, and observations. This policy change wasn't discussed in public during association meetings, nor were the discussions of policy changes and enforcement by the rules and regulation "focus group" revealed to the unit owners.

Note 3. There have been some interesting consequences because of the new rules enforcement policies. I've noticed a few satellite dishes mounted in such a manner as to be in violation. The reason for strict guidelines is to minimize potential damage to the buildings and the roofs, and that means, to keep our maintenance costs as low as possible.

Note 4. I sent a copy of the photo to the R&R director yesterday, with copy to the president of the association. I accompanied it with a few questions about the origin and legitimacy of the bench. My thanks to the owner who took the photo on October 10.

Questions include:

1. Has the owner been determined, and has this been discussed with the owner? If not, I would suggest a discussion be made with the residents of the building to determine ownership.
2. If no one claims ownership, should it be removed by the association? If an owner claims it, then I’d like to know the specific position of the rules and regulations director, in this matter.
3. I pointed out a potential issue. All property in the common areas is the property of the association. We are responsible for it as soon as it is placed there. Should a unit owner have the right to determine the responsibilty of his or her neighbors, and their liability for his or her actions? 
4. If it is the decision of the board that the placement of personal property in the common areas is to be permitted, I requested advice on this. I suggested that the board determine what features and types of items are to be permitted, and if benches are to be permitted, where are they to be installed, etc. Who is to maintain them? What is the criteria for removal by the association? For example, if the bench falls into decay or disuse and becomes a danger or hazard to residents, who is to determine when and if it poses such a danger? Who is to negotiate with the owner if such ‘danger’ exists. Who is to pay for such removal? In other words, what are the ground rules?
5. If benches on the property are desireable, and the R&R director has decided to “look the other way”, then I suggest that the R&R director approach the board and initiate a discussion to determine the appropriateness of such benches, and determine how to specify the type of benches, where they are to be installed, who is to approve such installation, and then initiate a change to the rules.
6. Finally, whose insurance will be cited if someone trips over this, or falls from it and is injured? The association’s or the owner’s? Perhaps what is needed is a “waiver of subrogation” from the owner, naming BLMH. Of course, such waiver must be renewed annually. Who is to assure that this is done? Who is to monitor this? If an owner refuses, then what?

Note 5. The approach I am advocating would permit all owners to have the same benefits. It could also shift rules enforcement in the direction of being a creation, rather than a reaction. If this makes sense to you, I suggest you contact the board. Writing is best, if for no other reason than it is easy to ignore or lose verbal requests. Email with copies to all board members are an easy method of accomplishing this. Our email addresses are contained in each "Manor Briefs" newsletter, which is also posted on the official BLMH.org website. 

Note 6. It's also my observation that the rules and enforcement of the rules at BLMH has shifted into gamesmanship. Owners and even board members, sometimes cajole other owners and play politics to get others to agree with their positions. One of the statements used in conversation to solicit such agreement is "Isn't this wonderful!" That's one of the reasons I have stated publicly that "silence in all matters is consent." That's exactly the conclusion of people who interpret such silence as being complete agreement. Of course, most owners would prefer to avoid confrontation and that means, avoid an argument or disagreement. Some months ago I didn't "roll over" during such a press by an owner about their position on a matter here at BLMH and at the end of that conversation I was told "You are a hard, hard man!" That's the way the game is to be played by some of our politically astute owners. Cajole, manipulate and if that fails, then dominate? Or simply attempt to make others "bad and wrong?"