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Where Does Your Garden Grow? In a Condo Community, Where the Board Says it Can Grow

 Justin Magsarili

It’s spring. The snow is gone.  Birds are singing and the green thumbs of condominium residents are itching to plant the flowers of which they’ve been dreaming all winter.  However, they need the board’s

permission before they start digging anywhere.

That is true not just in common areas, where, with rare exceptions, owners should not be allowed to plant anything, but in limited common areas designated for an owner’s exclusive use, where boards can and should control what gets planted and where.    

Pretty roses adjacent to the owner’s fence  shouldn’t pose any problems, but bamboo, which  can pop up several feet from where it is planted (in the yard next door, for example);  English ivy, which spreads quickly, both horizontally and vertically and tends to attract rodents; and poison ivy, which poses other obvious problems, are likely to prove unpopular with the neighbors. 

Maintenance – or the lack of it – is another potential concern.  An owner’s springtime enthusiasm may fade in the summer, leaving untended flowers to die, allowing weeds to overrun the garden and provoking complaints about the unsightly results.

Licensing/Exclusive Use Easement Agreements

To avoid these problems, boards should require owners to sign a licensing or exclusive use easement specifying that:

·       The board must approve what the owners plant;

·       The owners must maintain it; and,

·    The board has the authority to revoke permission and order the removal of plantings at the owners’ expense if they fail to comply with the licensing terms.

The agreement should also require owners to sign a waiver relieving the association of liability for damages related to their gardening efforts.  There isn’t a lot of risk here, but nothing is completely risk-free.

Avid gardeners sometimes want to help with – or even take over – landscaping chores in their community.  This is not typically a good idea.  Liability and safety are the primary concerns.  You don’t want volunteers, however skilled they think they are, climbing trees with chain saws to cut branches. But even less dangerous tasks like planting flowers may be problematic, given the likelihood that some owners will almost certainly object to almost anything your volunteer landscapers do.

Boards should encourage these volunteers not by handing them shovels but by putting them on an advisory committee – with the emphasis firmly on ‘advisory.’ The committee can suggest landscaping projects and propose ideas for improving the look of common areas, but the board needs to have the final say on any of these ideas, and it should hire an experienced, appropriately licensed and insured company to do the work. 

Community Gardens

Some communities may consider designating space for a common area vegetable garden.  This conjures images of happy residents companionably tending neat rows of corn, tomatoes and zucchini.  The reality is likely to be angry residents at odds over what gets planted, who is or isn’t doing their share of the maintenance work and how the bounty should be divided.  

Generally, community gardens for all to use aren’t worth the headaches and hassles they create.  But boards that want to create one should develop strong and clear rules and policies for its use, affirming the board’s authority to approve what is planted, to revoke permission for the garden if owners violate the rules, and to remove the garden if owners fail to maintain it. Boards should also require participating owners to sign liability waivers and should ensure that the association has adequate insurance to cover potential liability claims. 

The board’s authority to control what is planted in common areas and limited common areas is clear, but owners don’t always obey association rules. How should the board deal with an owner who decides to ask forgiveness for the garden he has created rather than seek permission for the one he would like to create? 

 

Enforcing the Rules

The board has the authority to remove the garden – or order the owner to remove it – and restore the area to its original condition.  That may not be necessary, however.  Unless the owner has installed quicksand or the garden equivalent of a boa constrictor – that strangles passersby – you probably aren’t dealing with a health and safety risk. 

The primary issues are protecting the board’s authority to establish rules and its need to enforce them consistently.  The board can achieve both goals by requiring the owner to obtain retroactive permission for the garden (provided the work done meets the board’s standards for aesthetics and content) and to sign a licensing or exclusive use area agreement governing it.  The board can also fine the owner for violating the rules.

Consistent enforcement is essential.  If the board allows this owner to skate by without getting permission for his garden, others will undoubtedly follow; and owners who have signed licensing agreements will see little reason to abide by their terms. 

Selective enforcement can create other problems.  If the board rejects a type of shrub proposed by one owner that other owners have been allowed to plant, the rejected owner may challenge the board’s authority to enforce the rule against anyone.  And if the owner is a member of a protected class under the law, the board may find itself defending a Fair Housing discrimination suit. 

Consistent enforcement requires vigilance.  Boards should inspect their properties periodically to identify landscaping violations and respond quickly to them.  If the board initiates an enforcement action now, as it is contemplating, the owner can ask reasonably why a garden that wasn’t a problem 18 months ago is a problem now.  The board can argue correctly that the owner failed to obtain permission for it.  But if this case goes to court, the optics won’t be good for the association. 

Justin in an Associate at the Braintree-based firm of Marcus Errico Emmer & Brooks, P.C.  His practice includes supporting clients regarding interpretation of governing documents, condominium operations and governance issues, unit owner responsibilities and rule enforcement, drafting and amending of condominium documents, and lien enforcement. He can be contacted at jmagsarili@meeb.com

 

 

 

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Updates to the FNMA and FLMC Condominium Guidelines

Marissa P. Giaimo 

The Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) are Government-Sponsored Entities (GSEs) that buy mortgage loans from private lenders and package them to sell as mortgage securities

to investors, creating a more accessible housing market overall. Both organizations set strict requirements for condominium projects to qualify for financing. Meeting the GSE guidelines is critical. Mortgage lenders may not sell a loan to Fannie Mae or Freddie Mac if the unit the loan is for is in a non-compliant condominium.

Now, the requirements are changing. On March 18, 2026, Fannie Mae released a Lender Letter (LL-2026-03) announcing updated project standards and insurance requirements. While Fannie Mae announced the changes, the Letter confirms that Fannie and Freddie are “in alignment . . . and in coordination with U.S. Federal Housing,” and “are issuing these property insurance and project standards updates together to ease the transition.”

Changes to Reserve Requirements

One of the major changes is to condominium reserve fund requirements. Condominium reserve funds serve as failsafe measures for condominiums when a repair is needed. If the reserve fund is short on cash when it is necessary to fix something, condominium unit owners may have to pay a special assessment to cover the cost. For many years, the GSEs have required that condominiums put ten (10%) percent of the association’s total assessment income from regular monthly condominium fees into reserve funds. A contribution of less than 10% to the reserve fund each year may be permitted if a formal reserve study confirms that there will still be adequate liquid funds to cover the cost of unexpected financial needs.

Going forward, as of August 3, 2026, lenders that “obtain a reserve study to demonstrate a project has sufficient reserves when it is not budgeting for replacement reserves . . . must verify that the project’s budget includes the highest recommended reserve allocation amount in the reserve study to adequately cover the costs identified.”

Additionally, and critically, on January 4, 2027, the required percentage contribution to the reserve fund will increase from ten to fifteen (15%) percent. This increase will not be required if there is an up-to-date reserve study (one that has occurred or been updated within the last three years), and if the condominium association follows the highest recommended level of funding (i.e., not baseline funding). Due to this requirement that reserve funds hold more across the board, condominium associations may have to impose increased assessments and adjust their financial planning in the long-term.

Changes to Project Review

Going forward, only Full Project Review or Waiver of Project Review will be accepted. More projects will be eligible for Waiver of Project Review, and the Limited Review process will be eliminated as of August 3, 2026. This includes projects with up to ten units, and standalone five- to-ten- unit projects.

Changes to Property Insurance Requirements

 Next, changes to property insurance requirements will take place. Unit owners and condominium associations alike will be affected by these changes. For condominium associations, the changes are relatively broad, applying to coverage sufficiency requirements, roofs, and the inflation guard. Regarding coverage sufficiency, the major change is as follows: (1) “[t]he property insurance policy must provide coverage on a replacement cost basis, with the exception of roofs” (which must be insured but, but no longer at cost); and (2) “property insurance policies that provide terms of coverage will be deemed to provide sufficient coverage.” The inflation guard requirement—like the requirement that roofs be insured on a replacement cost basis—is being retired.

For individual unit owners, one important change is to property insurance deductible requirements. With the updated guidelines, unit owners must be sure that, if their condominium’s master policy has a per-unit deductible, they have their own individual unit owner’s policy, too. Unit owners must be sure that the interior of their own unit is covered by an insurance policy—whether that be an individual policy or the master policy—and that their coverage is sufficient to cover either the per-unit deductible of the master policy (if there is one) or the cost for interior improvements or restorations. Finally, effective immediately, unit owner policy deductible requirements have increased to either 5% of the property insurance coverage amount, or $2,500, whichever is greater.

Changes for Lenders and Loan Servicers

In addition to, inter alia, the changes outlined above, there are changes to lender requirements, too. These changes are to property insurance policy monitoring guidelines, including the addition of a requirement that loan servicers remind borrowers that they must have property insurance at least annually.

Changes for Lenders and Loan Servicers

It remains to be seen the impact Fannie Mae and Freddie Mac’s updated guidelines will have. While this newsletter has outlined the highlights, there are specifications and more details in the Lender Letter. Additionally, unit owners and condominium associations should be aware that the timeline for when changes are effective varies depending on what the change is. For more detailed information, consult the Lender Letter.

A member of the REBA Condominium Law Section, Marissa is an associated with the Quincy firm of Moriarty, Bielan & Gamache LLC,  She can be contacted at mgiaimo@mbgllc.com.