Q A common area privacy hedge behind my home has been attacked with a fungus and many plants have died. The hedge was a barrier for both privacy and sound fromthe boulevard that my home borders. I have sent several letters that have been disregarded by the board. Nothing has been done to care or repair the barrier hedge. I feel that it lowers the value of my home. Any suggestions you may have will be greatly helpful. Also, if I engage an attorney, who pays for the legal costs? Who can pressure my association’s board to replace the hedge?

— Hedging a Bet

A Assuming that the privacy hedge is, in fact, common area, then the board has considerable inherent discretion as to both how and when to care for and/or replace the hedge.

Condominium boards generally owe a duty of undivided loyalty to the organization of unit owners – not to any individual unit owner – in carrying out their common area maintenance, repair and replacement duties. So, the board must consider that which is best for the organizational entity in making its decision – not necessarily that which an individual unit owner would like.

Boards must balance a variety of frequently competing interests in prioritizing common area repairs/replacements. So, the courts give condominium boards great deference in the decision-making process.

As to payment of attorneys’ fees, the general rule is that each person must pay for their own legal representation unless specifically provided otherwise by law. However, some condominium documents contain a “prevailing party” exception to this general rule whereby the prevailing party in conflicts of this type is entitled to have the non-prevailing party pay attorneys’ fees.

So, it’s best to check your particular condominium’s constituent documents for such an exception – otherwise, you will haveto pay for your own legal representation.

— Joe Saurino, Esq.