Back Yard Considered Common for More than Ten Years, Now Limited Common

[ctcondo_owner]

My question involves a condominium located in the State of CT.

I would appreciate any insight or feedback to this situation.

I own a condo with a fenced in backyard. All the units along the back of the complex have fenced in backyards, while the ones in the front do not. Supposedly the fences were elective and installed by the original builder and paid for by the original owners. The fenced in backyards have entry gates that anyone can open and enter, so they are not locked and "private" per se.

Since the condo's inception 10+ years ago, all of the units' backyards have been considered common elements and maintenance of them has been covered by the common charges. Recently, the Board reviewed the Bylaws and determined that fenced-in backyards are actually Limited Common Elements. Therefore, the maintenance and upkeep of the fenced-in backyards are the responsibility of the individual unit owners.

My questions are:

- Is it possible to dispute the change based on the fact that a 10+ year precedence has been set which considered fenced-in backyards as common elements? I have old association minutes which specifically mention that all yards are common elements.

- If not, one option is to remove the fences entirely which would make my backyard a common element again. However, the existence of the fence does not impact any of the front unit owners in any way. There is no benefit to them to having me remove the fence, but there is a clear detriment to me in terms of property value and privacy. Is there an argument that requiring me (and the other back unit owners) to remove our fences after 10+ years in order to consider the backyards as common elements is unnecessary and burdensome?

- Can I try to compromise by offering to pay for the maintenance of the fences themselves and taking down the front side of the fence (which includes the entry gate)? This would "allow access" to my backyard by any members so that they are not "excluded" from using the space. I would want to leave the other three sides up to maintain the current privacy, and ask the association to pay for maintenance of the yard as they currentlye Board seems adamant about following the exact language of the Bylaws though, but I feel there is room for compromise.

- If none of the above, what other options or recourse do I have? If I can get a majority of the unit owners to agree with my viewpoint, can this be put to a vote?

Ideally, I'd like to be able to maintain the current status quo as closely as possible - some semblance of a fence in my backyard while having the maintenance of the yard be covered by the common charges as they have been for the past 10+ years.

Thanks again for any feedback.

[Mr. Knowitall]

You can have a real estate lawyer read the relevant documentation. We have no way of determining for you whether the former or present interpretation is more consistent with the relevant bylaws and association rules, and you haven't shared any of the definitions.

If you want to team up with other homeowners, run for the board at your next opportunity and amend the bylaws, you can attempt that. If you want to propose that the bylaws be amended such that fully enclosed back yards would be maintained by the association, you can propose that - although it sounds like the issue is money, so that could cause a dues increase.

[ctcondo_owner]

Thanks for your response. My issue is not whether the present interpretation of the bylaws is correct - rather, assuming that the interpretation IS correct, what recourse do I have? It sounds like the primary option is to propose that the bylaws be amended; however, the back units are outnumbered by 2:1. If the other members do not agree to amend the bylaws, is there any merit to fighting the change based on the 10+ year precedence that has already been set?

[Mr. Knowitall]

If you're conceding that the bylaws are presently being correctly interpreted, you would have an uphill battle to try to create any sort of "detrimental reliance" or other argument to try to force them to continue their error.