Garbage Stumps

A few notes, based on a perusal of some lawyer blogs, about common property. There are several categories; common property (for the use of all), limited common property (like the new Annex for the use of some, such as the Poker Club) and exclusive limited common property (only one owner)--which the garbage stumps would fall under.

Garbage stumps are a limited, exclusive common element. This type of common property is unusual in a homeowner's community and is usually associated with condos--like parking spaces. In order to determine who has responsibility for repair, replacement and upkeep, one must look to the governing documents.

SLohA governing documents are silent as to maintenance, repair and replacement of garbage stumps. The only thing one knows for certain is that stumps were conveyed to SLohA by the Developer as part of the common property.   This is further evidenced by the dozen old garbage stumps situated inside the fenced Maintenance area used to replace stumps that might be destroyed by earth-moving contractors or mysteriously removed from the property.  When the documents are silent, it is up to the Association to amend its documents to fill in the void and make it clear who repairs, replaces or maintains. SLohA made a rule, but a rule can only relate to a Covenant or a property right that is already there. A rule cannot stand alone--it cannot create a new property right-- so SLohA's rule is null and void. So the question remains--who repairs, replaces and maintains the garbage stump?

The Board Might put on their thinking caps (or protective Martian headgear) and ask "What might a court say in this circumstance?" (Or they might get a legal opinion). According to the way the lawyers think, the court would first look to the original intent of the Developer. The Developer was creating a deeded campground, where trailers came and went for a week or two or month at a time. Even though the lots were deeded, the use of the property was transient and intermittent during the winter season. The presence of the garbage stumps on each lot fulfilled a functional and thematic purpose in maintaining a common western flavor and a consistent appearance throughout the property. It was to the Developer's advantage to add this stationary trash collection element rather than chasing after campers to haul trash receptacles from streetside to ...where? RV campers do not carry trash cans in their popups!

Further, even though SLohA is NOT a 55+ community, functionally it is made up of elderly residents who would like to spend their golden years at the buffet or on the golf course rather than painting trash cans. It is also a community where the great majority of the owners are only residing on the a property a few months out of the year to recreate. Finally, it bills itself as a "resort" and, as such, is reasonably expected to perform the mundane aspects of keeping up the common property such as repainting the garbage stumps every 5-7 years or so.

For all the above reasons, i.e. because the Developer originally intended the stumps to be common property, and there is nothing in the CC&R's specifying the stumps as exclusive, limited common property, along with the current-day character and usage of the "resort" by most owners, there are good reasons to support the rationale for the periodic maintenance of garbage stumps being the responsibility of the Association.

Seems to me that this could easily be incorporated, for the very modest cost of some paint, in employee maintenance duties during the summer. Or, as was actually planned 2 summers ago, hire a college kid for mininum wage to paint stumps if Maintenance is too busy. Considering the rate of spending lately in SLR, the expense would be a drop in the bucket.