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- A homeowner is required by his HOA to use a specific landscaping service, but the service refuses to lock and unlock his backyard gate.
- The landscaping company cites liability concerns as the reason why the homeowner's garden gate was not repaired.
Do you live in a home managed by a condominium, cooperative, or homeowners association? Do you have questions about what you can and cannot do? Ryan Poliakoff, a Boca Raton-based attorney and author, has answers.
Ask: We have a vacation home in a new development and our HOA hired a landscaping contractor for the community. Due to community rules we are forced to pay for the service regardless of whether we use it or not.
The problem we are having is that despite numerous requests, the landscaper refuses to lock and unlock the gates to our backyard (and pool) because he believes there is a risk of liability. Since we are not on site all the time, we cannot lock and unlock the gates for them when they are serving the backyard.
Neither the HOA nor the landscaper supports our request, but we are forced to pay for the service. Our only option at this time is to hire our own landscaper unless you have ideas on how to address this. Do you have a solution? Signed, GR
Dear GR,
If I were the landscaping company's lawyer, I would be worried about them too. The problem they have is that if they agree to be responsible for locking and unlocking your gate, if they forget to lock your gate even once, and then something is stolen or damaged, they are now being blamed for that mistake.
It's not that they work for you privately like a housekeeper; You are responsible for each individual house. It is not uncommon for HOAs to be responsible for hiring landscapers to maintain lawns throughout an entire community, even on their properties. It's somewhat unusual for an HOA to be responsible for fenced areas, but I've seen it before.
Why does your garden gate lock? I don't see this too often and I'm wondering if a typical fence lock will really provide you with protection so you can't just leave it unlocked (maybe you have an unusually strong fence, but most fences could be torn down without too much trouble).
However, if you want to maintain that extra security, the first solution is to hold the landscaper harmless and compensate him (and the HOA) if he forgets to lock the gate and someone damages your property. If their primary concern is liability, a written indemnity agreement would go a long way toward addressing those concerns.
The reality is that they are not going to take on this liability for your convenience and so I don't think you can force the issue. Other options include simply leaving the fence unlocked (again, consider whether your lockable fence will actually do much – only you can judge how your fence is constructed), or asking a neighbor (or hiring someone) to open and close your fence on landscaping day.
Ryan Poliakoff, partner at Poliakoff Backer, LLP, is a board-certified specialist in condominium and development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer's Guide to Condominium, Co-Op and HOA Living.” Email your questions to Condocolumn@gmail.com. Please be sure to include your location.