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Subject: We own a pond!
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Author Messages
LaurelC1
(South Carolina)

Posts:5


06/10/2018 7:21 AM  
Hi all. I appreciate any insight anyone might have. We just purchased our house in November 2017. We knew that the HOA was involved in legal action related to a small pond adjacent to our property. Apparently the nearby military installation was causing some sort of runoff with excessive siltation. Apparently this pond used to be very nice, with a fountain and everything. Now its a swamp. We recently received a large envelope from the lawyer hired by the HOA. The cover letter basically said “hey bylaws say this is not the HOAs problem since its not a common area but here is what we uncovered....good luck”. He also provided some documentation indicating that we and 6 other property owners are all conjoint owners of the pond. We are not sure what to do about all this. We do have title insurance and have contacted our closing attorney but i was hoping to get some experience/perspective here. Thanks!
MelissaP1
(Alabama)

Posts:7534


06/10/2018 10:09 AM  
Sounds like you and the 6 other owners need to get together to discuss options. Your only part owner. Not unlike if you would be in the HOA. Which how many are in the HOA?

Former HOA President
GenoS
(Florida)

Posts:2288


06/10/2018 11:11 AM  
"Good luck" is right. Even if you could show the military base had been using the pond as a toxic waste dump for 30 years it would possibly take another 30 years to get the government to clean it up. If it's not a matter of toxic poison, good luck twice because they'll say it's not a priority.
LaurelC1
(South Carolina)

Posts:5


06/10/2018 12:33 PM  
We are all community members in the HOA. Don’t know if anyone is on the board. We will be getting together Wednesday to discuss. Some of the other posts have me nervous. For example being required by law to dredge the pond every few decades. To fix it up I’m sure we are talking hundreds of thousands of dollars. We certainly did not sign on for that when we purchased the house.
KerryL1
(California)

Posts:5535


06/10/2018 2:47 PM  
Way outside my experience, but if your closing attorney can't help you 7, I'd say all chip in to hire a different attorney to learn exactly what your obligations and rights are.

It'd be interesting to find out just who built a fountain and maintained the pond in the past. The 7 owners? The HOA?
GeorgeS21
(Florida)

Posts:440


06/10/2018 4:06 PM  
Laurel,

You don’t know if anyone is on the board. Any of the other six with ownership rights.

Does you county have a GiS to allow you to look up thand deeds?

Do you have an HOA board ...talked with them to make sure you know the full history? Appointment with the military facility legal officer?
GeorgeS21
(Florida)

Posts:440


06/10/2018 4:08 PM  
Sorry - typos the rule tonight 😀

Once you understand waaaay mood re, contact local newspaper ...contact EPA ...contact Army Corps of Engineers.
MelissaP1
(Alabama)

Posts:7534


06/10/2018 4:41 PM  
No need to run to the media on this issue. That just doesn't help anyone. However, I will say that you may want to contact the Army Corps of Engineers and the military base. There could be options there. I happen live near a base here. They have an insurance policy of sorts to cover some things like toxic leakage or damages caused by them. If you suspect toxic chemicals, best to have a water sample taken to the right agency/health department. It can get into the water table and cause issues later. We have an area that a neighborhood is built close to an old nerve agent leak. The army base gives updates and meetings to those residents on a regular basis.

The Army Corps of Engineers may be a good resource to ask because determination of resource. Is it natural? Is it a run-off pond? Are you able to make changes without approval? Do they have assistance program? We had to contact them because we have a natural run off that runs through the edge of the HOA. It floods 2 homes routinely and is nearing the edge of a home. We can't modify it without approval by them. So they may either put you in a bigger hole or dig you out of this one.

Former HOA President
LaurelC1
(South Carolina)

Posts:5


06/10/2018 5:01 PM  
The HOA was involved in exploring legal options against the base before they handed it off, so to speak, to us. We knew that the HOA was having issues when we bought the house but didn’t know that we owned a stake in the pond. It was not on PLAT when we closed on the house. The fact that we own a stake in the pond is news to us. The local installation had some negative press recently when several people died downstream of a dam that broke due to not being updated by the installation. I have no interest in going to the media, just don’t want to get stuck with expensive repairs for a problem that isn’t our fault for a pond we never wanted to own.
GenoS
(Florida)

Posts:2288


06/10/2018 5:24 PM  
Get your title insurance company involved. If it wasn't on the plat of your lot then there are potentially problems you absolutely should not be responsible for.
MelissaP1
(Alabama)

Posts:7534


06/10/2018 6:23 PM  
I wanted to note... The HOA may have approached the army in the wrong way. It sounds more like they were a bit aggressive and possibly threatening to sue? Don't know the details on how they approached. However, having dealt with the Army and even the Corps, you find there is usually a department available to discuss issues. No need in going in hot headed and guns a blazing.

Once you get with your other 6 owners, maybe discuss the appropriate end result you all want. Do not look at the problem. The end result is it to return the fountain? Is it to find out if it needs dredged? (Which is not all that expensive necessarily). Would you all like to make it available for recreation or wildlife preservation?

Set forth in your journey for an answer by knowing what you want in the end. Your HOA may not have been so defined with the Army. Definition usually works better to get the results.

BTW: Whether it's just you 6 or the whole HOA, you would still be part owner of the pond. It's just divided by 6 rather than if you have 100 members in your HOA. Could have still subject to a special assessment from the HOA to address the issue. It just would have been a bit cheaper and spread out among more members.

Former HOA President
BenA2
(Texas)

Posts:525


06/10/2018 7:53 PM  
Posted By MelissaP1 on 06/10/2018 6:23 PM


BTW: Whether it's just you 6 or the whole HOA, you would still be part owner of the pond. It's just divided by 6 rather than if you have 100 members in your HOA. Could have still subject to a special assessment from the HOA to address the issue. It just would have been a bit cheaper and spread out among more members.



The biggest difference is that if it is a common area owned by the HOA, there is a board that can make decisions about maintenance. If you are one of six owners there is no problem as long as all six are reasonable people and always agree on the maintenance of the pond. I'm being sarcastic, of course, that will never happen.

Even when two owners share a driveway there can be problems. Six people sharing ownership of a pond sounds like a nightmare. I would contact the title company first and then a lawyer.
MelissaP1
(Alabama)

Posts:7534


06/10/2018 8:10 PM  
You can always use the pond to hide the other bodies...

Former HOA President
BenA2
(Texas)

Posts:525


06/10/2018 8:30 PM  
Posted By MelissaP1 on 06/10/2018 8:10 PM
You can always use the pond to hide the other bodies...



That is a good idea.
SueW6
(Michigan)

Posts:291


06/11/2018 5:13 AM  
Of course you are going to need the history of the detention pond - was it always there, or created for your subdivision's drainage purposes?

Your local municipality would have a file on all the approved steps that were gone thru for your development, including engineering plans for the drainage, road and water lines, roads, lighting, etc. etc. These plans would have to have been approved before the development could even have been built.

Most likely, the base has been draining its property this way for years and your 100-year plan detention pond is over-lowing and needs to be cleaned. Seems funny that the onus is placed on individual landowner's and not the association.

In any case, it's illegal to flood someone else's property, so the base should be involved in its maintenance if it's overflowing or needs maintenance. Be sure to get a lawyer versed in municipal planning and knows how to read the approved landscape, drainage plans, and topographical issues.
LaurelC1
(South Carolina)

Posts:5


06/11/2018 6:32 AM  
Thank you all for your considered advice. This property actually used to belong to the base several decades ago but has since been purchased privately and developed. Our particular group of houses was apparently bought and sold several times over the years before being developed. I was reviewing the documents that the HOA attorney sent and the argument is that each lot was understood to own 1/7 of the pond and are all equally responsible for maintenance. They included the deeds for each property and some of the deeds explicitly state this in writing, but ours did not. Their argument is that “appurtenances” are stated in the deeds that do not mention the waterway so we should have known. I really hope our title insurance company can help. This is our first experience purchasing property and we went through a bank and had a highly recommended closing attorney and everything. We thought we did everything right 😕
JanetB2
(Colorado)

Posts:4151


06/12/2018 2:31 PM  
If this property was not noted in your closing documents and plat ... then your Title Insurance is the entity who needs to duke it out and protect your property rights. They are the entity who did all the title research to insure there were no encumbrances on your property title.
KellyM3
(North Carolina)

Posts:1295


06/14/2018 5:56 AM  
Hi Laurel,

I wouldn't assume your pond is a toxic waste pond due to silt running into it over a long period to time, can be somewhat normal but accelerated if water runoff is heavier than normal. It's a maintenance matter that the HOA has dropped on six property owners to address. That's all the HOA attorney cared about.

Depending on the size of the pond, you could dredge it to remove the silt and restore the ponds function, fill it in and create space or leave it a "swamp." There isn't a cheap solution.

I'm surprised your closing attorney or the real estate agent didn't know about the co-ownership of the pond but, with careful strategy and investment, you could really enhance your private property.
CjC
(Maryland)

Posts:126


06/14/2018 5:58 AM  
Does the county or state think of this as a storm water management pond?
LaurelC1
(South Carolina)

Posts:5


06/14/2018 6:45 AM  
Posted By CjC on 06/14/2018 5:58 AM
Does the county or state think of this as a storm water management pond?




That's one of the questions I'm hoping that our closing attorney can assist with. From the reading I've done it sounds like their may be legally required maintenance if in fact it is a retention pond. It certainly looks like it hasn't been maintained for a long time but who knows. I think it might be a really nice area but at what cost? It's pretty overrun at this point and I imagine it costing $100K or more to fix.

My biggest concerns are the potential maintenance costs and hassles (like trying to get together 7 different households to agree on something, as someone stated above), and what it might do to the resale value. I don't think we would have bought the house if we knew we were co-owners of a pond. Who wants to deal with that mess?

The meeting with our neighbors has been moved back to next Tuesday due to scheduling conflicts and our attorney has said that the issue is "complicated" and he needs more time to look into it. So we are in a holding pattern.

Thanks again all for your thoughts and advice!
CjC
(Maryland)

Posts:126


06/14/2018 11:06 AM  
Posted By LaurelC1 on 06/14/2018 6:45 AM
Posted By CjC on 06/14/2018 5:58 AM


My biggest concerns are the potential maintenance costs and hassles (like trying to get together 7 different households to agree on something, as someone stated above), and what it might do to the resale value. I don't think we would have bought the house if we knew we were co-owners of a pond. Who wants to deal with that mess?





And speak to your insurance agent. Your homeowners insurance may increase with a pond on the property.
JoyceR2
(Virginia)

Posts:127


06/14/2018 8:13 PM  
Get DEQ & the Army Core of Engineers involved & find the and land records for this property. Who signed to take ownership of this pond? If developer, then who signed to have it transferred?
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