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Subject: Maintenance responsibility for owner exterior additions
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BeverlyW3
(Virginia)

Posts:7


08/21/2019 9:45 AM  
I am in Virginia and work for the developer of a large commercial and residential development. The HOA in this development consists of several different residential "Zones". For example: one zone consists of townhouses who get a specified type and amount of exterior building maintenance and yard maintenance, and Single Family homes are in another Zone that get only lawn/landscape maintenance. Each Zone has their own budget and own assessments. The level of maintenance, budget and assessments were based off of approved construction plans that would exist at the time of construction completion. However, the developer/hoa does allow any home in each Zone to add trees or additional landscape beds (with ARC request and approval), but the HOA does NOT pay for nor maintain the landscape additions. It is up to the homeowner to take care of themselves or arrange with the HOA grounds keeping contractor to take care of and owner pay the contractor directly for maintaining the additions. While a little complicated to keep track of what is original landscape that the HOA handles and pays for VS what is owner added that the homeowner handles, that is what is done. Having said that, a little more difficult to decide about concerns driveways. Maintenance coverage for townhouse driveways include repairs of cracks and re-surfacing approximately every 5 years and also funds reserves for driveway replacement at the end of its estimated useful life. A homeowner has inquired about adding on to their driveway. Again, budget and assessments are based on what was originally installed by the builder. The HOA has not yet decided on how to handle owners who want to add on to their driveway. There are several considerations, but the main question revolves around how to handle maintenance responsibility if the ARC allows driveway add-ons? Or should they just not allow any driveway add-ons. Should the ARC allow and require owner to provide the same level of maintenance as the HOA at the same frequency and pay for it out of their own pocket? Then the HOA, along with the contractor, would need to track what is HOA maintenance and what is owner maintenance. Or do we create HOA bookkeeping headaches and assess additional amounts to individual owners for the HOA to handle maintenance for any add-ons (of course add-on maintenance costs could be different for different homes depending upon the expansion) then adding further bookkeeping headaches. Then there is the issue to consider about adding impervious surfaces to an already small townhouse yard...and if the HOA allows one owner to add-on, then they'd have to allow everyone if others so requested. Or can the HOA establish guidelines where they only allow end townhouse units add on because they have larger yards that would better accommodate more driveway not eating up and entire rear yard? (note: townhouses have rear driveways and garages). Should the HOA set a ratio/% of driveway to lot size and let that be the determining factor. The HOA governing documents are very vague on many things, and does not reference driveways specifically. Docs only reference that the "Design Standards or the HOA may regulate or prohibit..." and also says "to address specific issues that arise within the community, the HOA may adopt rules or may amend Rules and Regulations interpreting or expanding upon the basic principles of the Residential Declaration". I would appreciate any thoughts or sharing of experience with this type of situation.
PestY


Posts:0


08/21/2019 12:23 PM  
unreadable

please use paragraphs and proper spacing
GenoS
(Florida)

Posts:3577


08/21/2019 12:30 PM  
Wow. Beverly, please re-format that wall of text!
GenoS
(Florida)

Posts:3577


08/21/2019 12:36 PM  
Posted By BeverlyW3 on 08/21/2019 9:45 AM
However, the developer/hoa does allow any home in each Zone to add trees or additional landscape beds (with ARC request and approval), but the HOA does NOT pay for nor maintain the landscape additions. It is up to the homeowner to take care of themselves or arrange with the HOA grounds keeping contractor to take care of and owner pay the contractor directly for maintaining the additions. While a little complicated to keep track of what is original landscape that the HOA handles and pays for VS what is owner added that the homeowner handles, that is what is done.

How is that arrangement handled when a unit is sold? Is it disclosed to the new owner that they will be responsible for "extra" maintenance because of something the previous owner did? Is the seller required to put everything back the way it was originally before closing? It certainly sounds complicated keeping track of all that.

Is the Developer still in control of the association?

Also, are the driveways on private property or common areas?
GenoS
(Florida)

Posts:3577


08/21/2019 12:39 PM  
And I see you work for the Developer, Beverly. If the Developer is still in control of the association, my personal view is the Developer isn't doing the homeowners and future boards any favors with the granting of all sorts of variances, for lack of a better word, when it comes to who's responsible for maintenance. Way too many variables. How many of these type of homes are in that zone?
BeverlyW3
(Virginia)

Posts:7


08/21/2019 1:21 PM  
Thank you for taking the time to read this post. I realize it is quite long, and apparently hard to understand by some, but I do appreciate your willingness to offer helpful comments and ask questions.

Yes, the developer is still in control.

This is still a fairly new development that is growing quickly. The homes are still under original ownership, so there hasn't been any re-sales yet. Honestly, the developer I work for had not considered what happens when there is a resale when they initially approved adding the extra landscaping. So clearly a disclosure would need to be made to the new buyer of the "extra" maintenance requirement.

Having said that, after further digging, I found that the documents actually state the HOA can assess an Individual Residential Parcel Assessment for any additional services the owner requests if agreed upon between the HOA and owner.
Then the extra assessment would be tied to the property. This is how maintenance should have been handled rather than placing it on the owner to handle.

The driveways are on individual owner's property. If the ARC is inclined to approve any driveway add ons (that meet criteria that they establish), then I believe the best way to handle it is to add an Individual Residential Parcel Assessment to that property for the additional maintenance and the HOA handle it.

Because this is a huge development with mixed residential and commercial, the governing documents are massive. I'm still reading and sorting through all of the documents to figure out how to best advise my new bosses going forward.


BeverlyW3
(Virginia)

Posts:7


08/21/2019 1:41 PM  
I agree with you. While I found the documents allow for additional improvements, the HOA should initially have handled it as an added Individual Parcel Assessment charged to the property for the added maintenance.

I'd like to now figure out if there is a way the HOA/developer can somehow go back and make this change to the 8 existing parcels that added landscape where their approved landscape additions would be handled by the HOA with the additional assessment. Each of these 8 property owner's have hired the HOA landscaper to take care of their added improvements, so I don't think that would be an issue for them to agree.

Geez, the more I get into this the more I think they need to get some assistance from their HOA attorney. Honestly, I don't think many HOA's who provide full yard maintenance allow additions to landscape for reasons such as this. I've just been thrown into all of this.

Oh, Geno, there are currently 28 units in this Zone, but more to come beginning summer/fall 2020.
SueW6
(Michigan)

Posts:649


08/21/2019 2:04 PM  
If you haven’t already, take a bunch of pictures so you have a history of each request or change to any grounds.
JohnC46
(South Carolina)

Posts:9155


08/21/2019 2:06 PM  
Beverly

We are small, standalone patio homes. The HOA does all landscaping except for a small backyard surrounded by a 6ft privacy fence. We do not allow our owners to do any type landscaping even planting flowers. We do this for two reasons. We want to keep a uniform look and if the landscaper had to "jig" around owner planted stuff, they would charge us more. We do have planters, hanging plants, etc. that people install but not allowed on lawns. In other words out of the landscapers way.

MelissaP1
(Alabama)

Posts:9034


08/21/2019 4:12 PM  
I am not so sure about the drive-way add-ons. Personally, my vote would be no to adding them. It's not for just the current owner but future owners as well. Your current owner may take care as they paid for it. A future owner or renter situation not so much. They may try to find loopholes in the rules to avoid doing so.

My rule of thumb is that if you want the HOA to pay for something, then understand it's ALL the members paying for it with their dues. So best get a vote to agree for an expenditure from the membership before spending the money or approving modifications.

Former HOA President
CathyA3
(Ohio)

Posts:767


08/22/2019 5:10 AM  
Posted By MelissaP1 on 08/21/2019 4:12 PM
I am not so sure about the drive-way add-ons. Personally, my vote would be no to adding them. It's not for just the current owner but future owners as well. Your current owner may take care as they paid for it. A future owner or renter situation not so much. They may try to find loopholes in the rules to avoid doing so.

My rule of thumb is that if you want the HOA to pay for something, then understand it's ALL the members paying for it with their dues. So best get a vote to agree for an expenditure from the membership before spending the money or approving modifications.




I agree with Melissa but for a different reason: if a townhome owner wants to expand their driveway, they will very likely need to encroach on common elements, and that's a non-starter. They'll be claiming property owned in common by the entire community for their personal use. If the developer grants this without modifying the governing docs with plats, he's asking for lawsuits.
BeverlyW3
(Virginia)

Posts:7


08/22/2019 5:43 AM  
Thanks, Sue. We did do this.
BeverlyW3
(Virginia)

Posts:7


08/22/2019 5:51 AM  
John, yes this is exactly how the landscape should have been handled. We have about 8 houses now that have been allowed to add a small amount of landscape in the rear yard. The new question is how to we go about rectifying this mess...not allowing owners to add landscape going forward without creating upset homeowners or a legal issue. And is there any remedy on the 8 houses who were approved added landscape at owner's maintenance expense?
NpS
(Pennsylvania)

Posts:3987


08/22/2019 6:06 AM  
Virginia recently updated its initial and resale disclosure laws.

I suggest that you become very familiar with these disclosure requirements. Then sit down with your developer boss and make sure that he understands the liability he's creating for himself by cutting deals left and right. The situation you are in didn't happen by accident.

Sikubali jukumu. Read all posts at your own risk.
TimB4
(Virginia)

Posts:16681


08/22/2019 6:31 AM  
Posted By NpS on 08/22/2019 6:06 AM

Virginia recently updated its initial and resale disclosure laws.





They actually updated the entire statute.

The new version is available but doesn't become law until October 1, 2019.
BeverlyW3
(Virginia)

Posts:7


08/22/2019 7:18 AM  
Thanks, newest laws are effective October 1.
JohnC46
(South Carolina)

Posts:9155


08/22/2019 8:00 AM  
Posted By BeverlyW3 on 08/22/2019 5:51 AM
John, yes this is exactly how the landscape should have been handled. We have about 8 houses now that have been allowed to add a small amount of landscape in the rear yard. The new question is how to we go about rectifying this mess...not allowing owners to add landscape going forward without creating upset homeowners or a legal issue. And is there any remedy on the 8 houses who were approved added landscape at owner's maintenance expense?




Then implement it for the remainder of the homes. A Declarant can change Covenants and let the chips fall where they do.
GenoS
(Florida)

Posts:3577


08/24/2019 1:26 PM  
Posted By CathyA3 on 08/22/2019 5:10 AM
They'll be claiming property owned in common by the entire community for their personal use.

I agree with all of your points but I think the quoted portion is not entirely true. It would be true for a condominium association where unit owners have an undivided ownership interest in the common property, but in a Homeowners Association the association itself owns the common property. The homeowners do not have an ownership interest. I suppose that might vary by state.

My HOA's CC&Rs contain the following (language such as this exists in many, many HOA CC&Rs in Florida:

A member shall have no vested right, interest or privilege of, in or to the funds, assets,
property, functions, affairs, or franchises of this Association, or any right, interest, or privilege which may be
assigned, transferred, hypothecated or inherited except as an appurtenance to the real property owned by said member
and sold or transferred while said member is in good standing to an owner who shall otherwise meet the conditions
prescribed hereunder.



Big picture, it's still a non-starter.
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