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| Friday, November 21, 2008
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| Author |
Messages |
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MartynJ
(Georgia)
Posts:12
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| 09/15/2005 3:26 PM |
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Our HOA is in its infancy about one year old. I am the Secretary.
At the AGM one of the members proposed an Impact Fee and Damage Deposit for any new construction, it was voted into place.
The question has been raised by a builder member (who owns about 8% of the lots) who says that this is not legal, as it is not specifically stated in the Covenants.
Our Covenants do have a line stating that lot owners are responsible for any damage caused by them, guest, sub-contractors etc. But no means of enforcement is specified.
Any help would be appreciated as I can't find anything specific on this issue. At best it appears to be a grey area of the law (Georgia).
The rationale presented at the AGM, was that immediately before handing over to the HOA the developer had spent approx.$20,000 repairing the roads due to damage caused by 'builders'. That equated to about $1000 per house built. The Impact Fee proposed was $750 per lot payable at time of starting any new construction. The concept is that damage will occur and that it is very difficult to collect after the fact particularly when no one owns up to causing the damage.
The Impact Fee and Damage Deposit was correctly presented at the meeting and voted into place by a significant majority of the members present(quorum was well exceeded).
Thanks for any thoughts, we do not have any funds to seek paid legal advise this year.
Martyn |
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DianeW
(Florida)
Posts:67
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| 09/16/2005 8:58 AM |
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| Can't answer your question but the hoa secretary and myself were just discussing that yesterday. We think the issue needs to be addressed of either an impact fee or a bond of some sort so that if the roads are damaged, they will be repaired. I will certainly keep a watch on this question to see other views. |
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LisaS
(Illinois)
Posts:339
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| 09/17/2005 9:47 AM |
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Legally speaking, it has been my experience (I am not a lawyer- so take this as lay advice) that you cannot collect a fee for damage that has not happened. You may be able to collect a security deposit of sorts- but only if you have the ability according to your Declaration.
Do your documents not provide for fines/enforcement of any violations? Damage should be covered as a violation by lot owner and usually treated the same regarding enforcement. If our fines are not paid for damage/violation after due process in our association, they are allowed to be filed as a property lien.
You do not mention if there was a quorum at your AGM- it is generally required when voting to change the recorded rules. I am not familiar with Georgia- but in Illinois our Declaration states we must have 2/3 of entire membership voting to change a rule. This is also mandated by the State law. Not so easy.
Also, in most states you have provide notice of the change to all members, and depending on how many units perhaps to all mortgage holders (banks), etc. if you change the Declaration.
My guess is if you have a disgruntled builder and you try to make him pay these fees, you may be facing legal action. |
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MartynJ
(Georgia)
Posts:12
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| 09/27/2005 5:33 AM |
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Thanks for the reply. Sorry I have not responded for sometime.
Yes there was quorum at the meeting as stated.
The Declaration of Covenants do not provide any methodolgy for enforcement, but clearly states where the responsibility lies...with the lot owner.
We do not have any fines specified at this time.
Agree that we could change the Covenants by the requisite vote.
Have heard outside HOATalk that we must inform all owners of the Impact Fee voted into place by the AGM, as they must declare such on a Disclosure Statement prior to any sale. And that to undo this Impact Fee would require the 'disgruntled' to get the membership/special meeting to vote it out. This is supposedly based on the written wording of the by laws "These By-Laws provide for the self-government of.." and the by laws also have one of the defined purposes stated as " - such other matters reasonably related to the proper operation and functioning of the Association."
Legally 'grey' is the best position I have found to date.
Thanks for any additional thoughts,
Martyn |
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