Did you know that under our governing documents no routine landscape services (mowing, edging and trimming of grass or trimming of shrubs, trees and bushes) are to be provided within any fenced area in New Town? This is the standard language contained in 17 of the 21 Supplemental Declarations* for the neighborhoods of our residential community. All homeowners acknowledged receipt of this information when their homes were purchased. Yet since New Town’s early days, the Association has been acting in violation of its requirements and maintaining the entire yards of its residents, fenced or not.
Why was this limitation put into the governing documents? Perhaps it was seen as a cost saving measure or a way to limit the number of fences in our community, the rationale is not apparent. But regardless of its origins, we have provisions in our documents that should be enforced. The courts have ruled that failure to enforce a covenant does not waive it. In fact, Article 9.3 of our Master Declaration includes a statement that failure to enforce any provision of the Declaration or its Supplemental Declarations does not constitute a waiver. Since early 2020, the Association has been advised by counsel that the services should be discontinued until our governing documents are changed.
Changing this language to accommodate the existing practice is not within the power of the Board of Directors. Why can’t the Board of Directors just pass a resolution with a new policy? The only way that our Association’s highest level governing documents (Master Declaration, Supplemental Declarations and Bylaws) can be amended is through a 2/3 vote of the Members of the Association. So to continue with landscaping, these fence provisions must be reconsidered during our future NTRA governing document revisions.
The Landscape Perspective – David Carter
In 2021 New Town’s landscape services are again being provided by Virginia Lawn and Landscape. In an effort to balance homeowners’ expectations for services and to provide efficient and quality service to all, it's important to understand a few basic principles of the services rendered. To begin, services are provided for the benefit of all homeowners in New Town, for single family homes with larger lot sizes, townhomes which share contiguous lots and townhomes with only common areas that are maintained along with all of the other common areas. The cost basis and time constraints required to provide services is always a challenge.
The landscape crew's time is allotted to accommodate all of New Town's over 350 acres, and this requires managing a variety of environments. One of these is fences. Depending on the fence type, trimming takes a lot of time and precision and slows crews, which often impacts the work schedule. Mow too close and you create wear patterns in the turf and the blades of grass, and even the fence posts can be problematic. Homeowners have experienced damage to fence posts from mowing equipment. They expect the landscaper to repair them. Uneven ground also makes it difficult to mow and trim grass at a consistent height and increases the risk of cutting into the ground. Because our landscaper follows recommended heights for optimum turf, and to avoid the up and down adjustment of multiple pieces of equipment, a standard setting for mowers is utilized. Trimming around flower beds and tree rings in smaller fenced areas is also time consuming and labor intensive. Oftentimes hardscape inside or adjacent to fenced areas may include rocks, boulders, or pavers with knee walls, all of these take additional time and care. Crews are trained how to handle these situations, but there's no question, this takes considerable time and effort and with the proliferation of fences in New Town, this increased work was not factored into the VLL contract with the NTRA.
So, the NTRA is providing services that are not permitted in our governing documents and are creating problems for both the homeowner and the contractor, what should be done?
The most direct and legal resolution of this issue is to stop providing these mowing and pruning services within fenced areas. Homeowners would still be entitled to landscaping maintenance outside the fenced areas, but would be responsible for their own landscaping within their fences. The Board of Directors may need to correct this situation soon. It is certainly not an easy decision and will create turmoil. We recognize this is painful, and therefore, want to build awareness and consider options prior to strict enforcement.
How long should we give owners to make other arrangements for their fenced area landscaping? Can we provide the service as an extra amenity with conditions? One option might be to provide landscape maintenance service at an extra fee (a limited common expense assessment) to those with fenced yards. Perhaps the Association should require fences to have mulch under the fence posts so that grass is distanced from the fence in order to qualify for landscaping and reduce potential damage (currently this practice is recommended by the LAC and Architectural Review Committee for construction of any new fences.)
The ultimate solution is to consider what our policy as a community should be, and fix our documents accordingly. What should we say about fences and landscaping in our revision to our governing documents that the Board is starting?
We welcome suggestions, through comments below or email us via the website committee: firstname.lastname@example.org.
* Four of 11 Charlotte Park Supplementals are missing the applicable section relating to services. These omissions are administrative errors that need to be fixed during the NTRA governing documents revision.