VOLUNTARY HOA WITH COMMUNITY WELL?

Whoa - your HOA provides water from a community well to all homeowners - and you have NO mandatory dues to maintain this?

Our sub has a community well (actually 2) that provides water all year to over 250 homes. We have a Reserve Fund for this that only covers a few things, since the replacement tank would cost over $100,000 to replace and the top of the building would have to be removed to install it. If that blows, we go to township water . . . We have health department inspections and have to file a lot of paperwork with them, including results of testing. The pumphouse must be maintained, heat, electricity, etc. WHO and HOW is this being done in your HOA?.

Time to get into this century . . . You MUST get a plan for this water system!!

Our HOA in Texas will be installing water meter and be bill for the water
usage thur TCEQ your state is
http://michigan.gov/deq you should check it out or call them best of luck.

What does by-laws say about your question,or the cc&r say. CC&R rules then By-Laws they both should be honor

Yes, but bylaws can be changed. If you don't want certain bylaws, - like the ones governing fences - the Members can recind that particular bylaw. Usually the members must vote to do this (unless your bylaws say different)

Your bylaws should say how to change (amend) them. It takes a high percentage of voters to amend or recind (delete) a bylaw.

In the meantime, YES, all bylaws must be followed and obeyed. Whether or not your board is going to enforce them with fines is a whole 'nuther thing.

Craig,

Are you sure that their isn't a common well agreement (similar to a private road agreement) with all the homes?

The Association may be filling that obligation and as such, membership would be mandatory.

I'd suggest spending some time at the courthouse or pay someone to research your deed and/or paperwork associated with the well.

Tim

It might be time for the community to get together with an attorney and draw up new deed restrictions. In order to get them passed, I would say keep it limited to the upkeep, repair and replacement of the well and delivery system (leave off the Architectural stuff). I would also explain that failing to agree to these deed restrictions, would require the well service to charge each home for the usage and/or put the development onto the city water system.

Your deed is not going to specifically mention a well.

If your deed states your "property is in the XYZ subdivision" and that subdivision has CCR's, bylaws, dues, etc.... that "is" a deed restriction. Deeds are not black and white. They never say "deed restrictions" You just need to know how to read them and investigate things like: property is in the XYZ subdivision

This should not be a controversy. If the HOA wouldn't vote to maintain a community well, I'd dig my one and dare 'em to sue me.

I think the neighbors will be sensible.

I see two separate issues. First, did the developer grant easements or other recorded documents to all owners to use the well? Second, did the developer create some method other than the voluntary HOA, such as a private water company, to operate the well?

If all owners were granted use of the community well by the developer and also were not required to join the HOA, then there is little legal basis for compelling all owners to join the HOA. Even if the CC&R's mandated that the HOA operate the well, there is no legal basis for requiring HOA membership as a condition to use the well.

There is, however, substantial case law that holds that persons who use common facilities can be compelled to contribute to their maintenance. See Freeman v. Sorchych and especially those cases referred to in Footnote 9 at the bottom of page 14. Note that in legal terms, "dominant tenement" means the person(s) to whom an easement has been granted and "servient estate" means the property over which the easement has been granted.

Of particular note from the above footnote is: Meadow Run & Mountain Lake Park Ass'n v. Berkel, 598 A.2d 1024, 1027 (Pa. Super. Ct. 1991), "holding that repair and maintenance costs for common roads and other common areas were the responsibility of the residential users and not the homeowners' association that held title to the roads."

I would strongly suggest forwarding the above citations on to your attorney for a re-evaluation of your options.