The Greening of America

Published on: July 24, 2002

When I was growing up, life was certainly simpler. Dandelions were considered pretty and landscaping consisted of mowing a lawn with a manual lawn mower. With the advent of powered lawn mowers, automatic underground sprinkler systems, sod and chemicals which virtually turn lawns green overnight, landscaping has become much more complicated. Who would have guessed that landscaping could actually become an issue which would involve potential liability and litigation to community associations?

Attorneys Juan R. Cardenas and Mitchell N. Roth of the law firm of Rees, Broome & Diaz, P.C. located in Vienna, Virginia, have reported that a community association in Alexandria, Virginia, is being sued because of their landscaping procedures. In the law suit of Melinda Lebens v. Country Creek Association, Inc. et al., a resident of a community association sued the association, members of the Board of Directors personally, and the association’s lawn care contractor. The owner is seeking a judgment of $300,000.00 plus an award of punitive damages and attorneys’ fees. The action is being brought under the Federal Fair Housing Amendments Act of 1988, which provides certain rights to handicapped individuals. Under the Act, community associations are required to make reasonable accommodations in their rules, policies, or services, when such accommodations are necessary to provide the handicapped individual with an equal opportunity to use and enjoy his or her residence. In the Country Creek Association lawsuit, the owner claims to have a health condition called multiple chemical sensitivity syndrome. The unit owner alleges that her condition is aggravated by exposure to pesticides and the lawn care chemicals used by the association’s lawn care contractor. She claims that she made numerous requests to the Board of Directors for accommodations in connection with her handicap, which she claims were ignored or ridiculed. The dispute appears to relate to whether the association should simply create a buffer zone around the home of the plaintiff or whether the association should completely engage in an organic system of pest management at a significantly higher cost. It also appears that the Board of Directors of the association did not know that the request of the owner might be required of them by the Federal Fair Housing Amendments Act. A decision in the case is expected in the spring or summer of 1995.

In addition to litigation of this nature, we have found that litigation by and between landscape contractors and community associations has become much more prevalent. In many cases, the dispute might have been eliminated if a thorough contract had been drafted prior to the work being commenced. It is far easier to detail the scope of the work to be performed, whether it be landscaping or installation of an underground lawn sprinkler system, prior to the commencement of the work. If said scope of work is not detailed prior to the commencement of the work, then inevitably disputes may arise because the parties have different expectations as to what they were contracted to do.

There are certain criteria which might help eliminate litigation over landscape contracts if they are performed prior to the commencement of the work.

The experience of the contractor is certainly one major consideration. Another factor may be the size of the landscape contractor with both larger and smaller firms having different benefits. For example, the association’s business may be more important to the smaller firm and as a result a better deal might be secured by using a smaller firm.

Each contractor should provide references from other community associations that they perform work at. In addition, they should provide the names of community associations where they are no longer the landscaping contractor. Associations should contact the references to determine the satisfaction of the client with the contractor.

Although it may not be necessary to obtain a bid each year, certainly competitive bidding should be done from time to time using a detailed request for proposal. The determination as to which landscape contractor to retain should not be based on price alone.

Once the association has chosen the landscape contractor the association’s attorney should review and/or prepare the landscape contract. Provisions relating to default, termination, insurance, indemnification, and various other matters should be part of the contract which is signed by the community association. Once the contract has been reviewed by the attorney it should be reviewed by the Board to make sure that all work that was promised is included as part of the terms of the contract.

The Community Associations Institute has two GAP reports, one entitled Grounds Maintenance for the Community Association and the other entitled Selecting the Landscape Maintenance Contractor, which contain invaluable advice relating to landscape contracts.