LauraR2
(West Virginia)
Posts:41
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| 02/20/2008 2:37 PM |
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I am looking for input from other small associations. Our only common areas are our gravel roads, which the association maintains. We are required by WV state code to carry insurance on the "common elements." One board member claims we cannot have insurance because we don't own anything. My understanding is that all Association members "hold the road in common" but I'm not sure where I heard that. I'm waiting to hear back from several insurance agents but this isn't a common type of policy in our area and I want to make sure they give us the right type of coverage.
My question is two-fold: who owns our road, and what type of insurance do other small associations carry? |
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MaryN
(Virginia)
Posts:116
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| 02/20/2008 3:57 PM |
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In our community the property owners own the land the Assoc. has the "right-of-way" and the BOD told us that they were not able to get insurance on the roads because they don't have ownership. If you go to the courthouse and pull up the deeds of the properties you'll be able to see who owns the roads. We do not have insurance on anything other than the BOD's.
MaryN |
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LauraR2
(West Virginia)
Posts:41
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| 02/20/2008 4:01 PM |
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| Thanks Mary. Are you saying there is a deed to the roads at the courthouse? |
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BrianB
(California)
Posts:1591
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| 02/20/2008 5:53 PM |
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there areplot maps at the courthouse, and you can see if the roads are separately plotted with an owner deeded, or if the roads are simply given rights of way but are part of each individual owners land.
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BruceC2
(Virginia)
Posts:54
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| 02/21/2008 2:42 AM |
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LauraR2
As with our association all property owners property line pins are in the middle of the road and a deeded right of way of every lot is 10 ft. from the middle of the road for road and drainage. We have the maps of this in assocation records, Our only funtion as the association documents state is that our association was set up to maintain the roads. I have found no insurance for this and explained this to the association after placing signs at the entrance for no trespassing owners and guest only as well as a couple of rough road signs on a couple of roads needing more serious repairs. This was done to hopefully head off any claims against the association as to someone waundering in here and filing a claim for damages. Although it does not correct the bigger problem of why we need the signs in the first place. It only shows we tried to warn of possible problems! |
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BruceC2
(Virginia)
Posts:54
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| 02/21/2008 3:06 AM |
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LauraR2
I thought this might also help in your question, We attempted last year to get vdot to take over our roads, vdot wanted 25ft right of way from the middle of the road. Every homeowner would have had to sign an agreement to give the additional 15ft of land for this to happen. Several opposed so that ended the vdot proposal. Also we were threatened with a lawsuit from one homeowner that said we went over the 10ft to correct a drainage issue. |
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LauraR2
(West Virginia)
Posts:41
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| 02/21/2008 7:59 AM |
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Thanks Brian and Bruce. I will have to go to the courthouse to investigate. I have our plat map at home which shows the whole neighborhood. I'll look at that later too.
So, what would happen if someone sued your association because they broke their leg falling into a pothole? Even if they were an invited guest and not violating the posted signs? |
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DonnaS
(Tennessee)
Posts:2299
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| 02/21/2008 8:42 AM |
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LauraR
Does this road go in between your homes, like splitting it in half?
Your Plat map will have whether the road is part of your common property. It should be spelled out on the plat and within your documents as to common property and responsibilities. Money says that it belongs to your association. Read that first before you make a trip to the County offices.
If you fail to maintain it and someone gets hurt because of negligence, it doesn't matter that it is posted as private, there will be some responsibility to the association. |
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BrianB
(California)
Posts:1591
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| 02/21/2008 1:44 PM |
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The leg breaking incident you mention is exactly why your HOA needs some insurance. If you have any common areas, you need liability insurance at the least.
If you do not have such insurance, then they sue the association, you get a settlement or judgement, then you must pay it. If you can't pay it, then you raise assessments among all owners to raise the money needed to pay.
an HOA is a business: it has shareholders, liabilities, assets, budgets, expenses, etc.. |
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GloriaM
(North Carolina)
Posts:768
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| 02/21/2008 2:53 PM |
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Laura:
Liability Insurance and Director's & Officer's (D&O), speak to an insurance agent who will come out to your community and is the best one to give you coverage amounts. As always get more than 1 quote to ensure getting the best price. |
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Dr. Gloria J. Martinez, CFO
Official HOATalk.com Sponsor
Author of "A Guide to Community Living"
Faith Management Services, LLC (North Carolina)
(704) 799-3791
www.FaithManagementServices.com
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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DebbieS3
(Colorado)
Posts:3
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| 02/21/2008 7:58 PM |
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| Another thing to look at besides vdot taking over your roads, is the local civic entity. I live in a townhouse community where we have private roads. We are working with the city to take ownership of the roads. It is a bit of a process, but then they own and maintain the roads, which also means snow clearning. Try your civic community also besides the dot. We have an advantage that they are paved and are new, only being about 3 years old. |
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OlyJ
(Massachusetts)
Posts:11
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| 02/21/2008 8:42 PM |
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If the HOA is sued, can it just declare bankruptcy to discourage the lawsuit?
Wouldn't the homeowner be ultimately responsible? |
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DonnaS
(Tennessee)
Posts:2299
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| 02/22/2008 7:05 AM |
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OlyJ,
HOA's just can't declare "Bankrupcy" As long as there are members who jointly own the association and it is a Not For Profit Corp, which almost all associations are, then there are other vehicles to get this resolved. Bankrupcy of an association would affect all of the partners in the corp negatively. |
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LauraR2
(West Virginia)
Posts:41
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| 02/22/2008 8:07 AM |
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OK, I've done some homework. I believe the POA owns the roads. Someone please tell me if I'm wrong. On the maps, our lot markers go up to the edge of the road. The road is clearly marked on the map, although no mention is made of its ownership. On the R&RC, recorded in the deed book at the courthouse, it says, "The roadways and right-of-ways constructed throughout the subdivision are hereby dedicated to the Association by the Grantor, and are for the use in common of the grantor, lot owners and their respective heirs, successors and assigns, The dedication shall not inhibit convenient use of the Subdivision's roadways."
One insurance agent said she cannot insure a road. I'm still waiting to hear from a couple of other agents. |
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DonnaS
(Tennessee)
Posts:2299
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| 02/22/2008 8:15 AM |
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Laura,
The association owns the road as common property, that means that they are your to maintain and insure. |
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LauraR2
(West Virginia)
Posts:41
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| 02/22/2008 8:29 AM |
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| I just got off the phone with an insurance agent who laughed when I told him that the other agent said they can't insure a road. He has written a policy for another Association in the area so he has some experience. He says the POA owns the roads so they are ours to insure. He said if we get sued, they will sue the POA, the BOD, and each member individually. Yikes. |
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PaulM
(Pennsylvania)
Posts:1347
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| 02/22/2008 9:48 AM |
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LauraR2: "One insurance agent said she cannot insure a road..." I don't believe you are insuring the road per se'. What you are seeking is insurance against an incident/s whereby someone would sue the Association for a liability involving the road (which has been dedicated to the Association for repair/maintenance, not the county).
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DonnaS
(Tennessee)
Posts:2299
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| 02/22/2008 10:19 AM |
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Very good Paul. That is exactly right |
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BruceC2
(Virginia)
Posts:54
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| 02/25/2008 1:23 PM |
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PaulM & DonnaS
Curious to know who insures your roads as from other common areas you may have, are there seperate polocies? Why would an insurance company insure a call it pre-existing condition or in our case pre-existing negligence. As for county or city have you heard of anyone suing over there vehicles being knocked out of alignment for hitting a pothole. I perfectly understand common areas needs to be insured but the question in the beginning was road insurance so you must have some,,,could you please share with us what yours includes. |
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BrianB
(California)
Posts:1591
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| 02/25/2008 3:36 PM |
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a road owned by an association is a common area. the LAND is common area, and needs to be insured against liability, etc. It matters not the USE of the land (fallow, park, greenbelt, road, gate, drainage, etc.). It is a liability waiting for a lawsuit, simply by being in existence.
Cities, states and counties get suits filed all the time for road hazards: Potholes breaking tie rods, steel plates springing up and damaging oil pans, etc. You better believe cities are insured for their roadways. |
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RobertR1
(South Carolina)
Posts:1904
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| 02/25/2008 4:18 PM |
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Laura,
Your post: RE: Who owns our road? Need input from small associations
Message: OK, I've done some homework. I believe the POA owns the roads. Someone please tell me if I'm wrong. On the maps, our lot markers go up to the edge of the road. The road is clearly marked on the map, although no mention is made of its ownership. On the R&RC, recorded in the deed book at the courthouse, it says, "The roadways and right-of-ways constructed throughout the subdivision are hereby dedicated to the Association by the Grantor, and are for the use in common of the grantor, lot owners and their respective heirs, successors and assigns, The dedication shall not inhibit convenient use of the Subdivision's roadways."
One insurance agent said she cannot insure a road. I'm still waiting to hear from a couple of other agents.
***************************************
Starting with "The roadways and right of ways, etc.
Their should be something in your turn over papers from the Grantor (developer) that should deal with how this all passed to the association. Maybe you will find they were never turned over or were turned over improperly. The way this read the grantor still has free use of the roads and his respective heirs, successors and assigns. Also notice that this includes the "right of ways (Whatever they mat be.)
IMHO
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DonnaS
(Tennessee)
Posts:2299
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| 02/25/2008 4:33 PM |
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Hi Robert,
You said that "the grantor still has free use of the roads and (HIS) respective heirs, successors and assigns."
I copied the post from Laura and
it says, "The roadways and right-of-ways constructed throughout the subdivision are hereby dedicated to the Association by the Grantor, and are for the use in common of the grantor, lot owners and (---THEIR---) respective heirs, successors and assigns, The dedication shall not inhibit convenient use of the Subdivision's roadways."
There is just the one word--his verses theirs, which changes the entire meaning of the paragraph and to useage. Do you want to go for new glasses with me? I needed new ones twice last week.
Thanks Robert, Donna
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LauraR2
(West Virginia)
Posts:41
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| 02/25/2008 5:47 PM |
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I have been either a director or an officer since the beginning and I can tell you with certainty that there are no "turn over papers" from the developer. We have only R&RC, By-Laws, and Articles of Incorporation. The developer is filing for bankruptcy and no longer answers or returns phone messages left on its answering machine.
Are we missing something important here? I took that passage from the R&RC ("The roadways and right-of-ways constructed throughout the subdivision are hereby dedicated to the Association by the Grantor...") to be the official "turn over." It's recorded in the Deed Book after all. |
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DonnaS
(Tennessee)
Posts:2299
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| 02/25/2008 5:59 PM |
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Laura,
You probably wouldn't get "Turnover papers" from the Developer. He would have recorded your association with your County after he would have gotten his Bond money back from the County and that would have been only after your Board had signed off on it. The documents that you have are what you should normally have been given. Check in your County Clerks office to see what they have on record for your association. That is a good start anyhow. |
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RobertR1
(South Carolina)
Posts:1904
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| 02/25/2008 7:29 PM |
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Donna,
Well, I see your point and I agree you may be right about the meaning. I just wish I knew enough to argue about it. I am used to being wrong, even when I'm right, and bow to my superior with the better glasses. In fact, I had cateracts taken off both eyes and no longer use glasses to read. However I think they may have removed some of the nerve connectors from the eye to the brain, but that is another story. I agree Laura should see what is really on record at the Clerks office, and maybe see what the deed reads. I guess someone is paying taxes but that don't mean they own the property.
I thank you for the correction and still say, you should come to SC.
We have a sign in our dumpster area put up by our manager that says:
No Trespassing,
Private Property
There is a $10.00 a bag charge for illegal dumping.
Been there for years and I am the only one that thinks this sign is crazy.
The Board has no problem with it, and the manager thinks it discourages illegal dumping because of the fine involved. |
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RobertR1
(South Carolina)
Posts:1904
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| 02/26/2008 5:08 AM |
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Donna and Laura,
After sleeping on this, I wonder what your translation of this would be.
The term "dedicate" seems and unusual term to use when you are transferring property, and even considering my "mistake" in words, doesn't the statement still mean that the Grantor still retains some standing? I really don't know. I sure don't want to be "splitting hairs". |
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BrianB
(California)
Posts:1591
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| 02/26/2008 7:34 AM |
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yes, the grantor can still drive on and use the roads. You cannot legally bar the grantor from doing so, under the wording of the deed restrictions.
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RobertR1
(South Carolina)
Posts:1904
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| 02/26/2008 8:08 AM |
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Brian,
From the information that we are working from, does it say who owns the roads. Regards not getting any transfer paper when an organisation assumes ownership of the property, I have never been real involved with the mechanics of that but I do know our Masterdeed and I believe our declaration makes reference to the original developer (declarant)and the establishment of the control of the Association. I just have some trouble understanding the information we have, especially the word "dedicated" in terms of ownership.
Hello Donna, you rascal. |
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LaverneB
(Florida)
Posts:121
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| 02/26/2008 9:18 AM |
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| I agree with Donna. Our area is 216 homes and the roads are private we maintain them. You should have insurance of some kind on the roads we are in city limits but put up our own stop signs, speed signs,etc |
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RobertR1
(South Carolina)
Posts:1904
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| 02/26/2008 10:01 AM |
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LaverneB,
In SC we are an Island gated community. We own and we pay for paving, etc, etc, and have a Security force empowered to wear guns and write tickets. We are zoned as a Planned Unit Development. The first developer around the early sixties bought all the non developed land. I think there was a few people that had fishing cabins. From that point the developer owned all the land and his successors still own some land and the Amenities and land. It's more or less a mystery who hold deeds to what. But at some point the owners started a POA and as the roads were put in they were paved. some of them, and turned over to the POA to maintain. Now, my question to you is, do you restrict the use of the roads? We can call for the Sheriff's office and they will respond, even though we have a Fire Department and Ambulance service it is all handled by the 911 system. Our POA has deeds to cover ownership of the roads and right of ways. We pay a nominal county tax on the roads and carry Liability on all the roards. It seems that is the only insurance you can get on roads. I did find out in this area of SC some home owners in the city limits (HOA's) started out by maintaining their roads and later got the city to cover the maintaining of the roads because they pay city taxes also. I also found out at least in some places it is a big mess and not much is uniform. So it appears if there is anything a HOA can do to have someone else take over the roads, it's been done before.
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