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Subject: Septic Tank Liability
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Author Messages
MarkD13
(Florida)

Posts:2


04/23/2021 11:18 AM  
Greetings All!

We are a very small HOA located in northern Michigan overlooking a large lake. All of our homeowners are on septic tanks, with one common septic field. Our septic tanks are showing signs of aging, and we are concerned that some may fail, cause damage to our common areas, and/or spill into the lake which could result in an enforcement action by the State of Michigan.

I am looking for Bylaw language that places the liability/responsibility on the septic tank homeowner for any and all septic maintenance, spills, cleanup, and restoration. If you have any applicable language, please respond.

Thank you in advance, and have a great weekend!

Take care,

MarkD13
CathyA3
(Ohio)

Posts:1881


04/23/2021 11:33 AM  
Do your bylaws have a sections that define common elements vs. individually owned items and homeowner vs. HOA responsibbilities? If so, so they say anything about septic tanks and who is responsible for them? What about the HOA's insurance policy - does it say anything about them (since insurance agents need to see copies of your bylaws in order to write the policy correctly)?

I know very little about septic systems, but governing documents often make utility systems that serve a single home part of the home (thus the homeowner's responsibility) regardless of whether or not the system is located within common elements. But there may be something unique about septic systems that would make this not workable.
LetA
(Nevada)

Posts:1160


04/23/2021 11:40 AM  
What does your reserve study say?

Are the septic tanks located on homeowners property or are they on common property?
LetA
(Nevada)

Posts:1160


04/23/2021 11:42 AM  
Most importantly, Who is currently paying the honey dippers to come out and service the septic system? is the home owner each paying or is the HOA paying?
SheliaH
(Indiana)

Posts:3921


04/23/2021 11:48 AM  
That should be in your own documents. The bylaws generally dictate how the community is run (e.g. How many serve on the board of directors) and the covers conditions and restrictions (CCRs) dictate how the common areas are to be used. This is where your see rules like requesting exterior change requests. You may also see what's considered common areas (the stuff the community is responsible for) and what the homeowner must cover.

If you haven't read your documents, pull then out and get comfortable. If you don't understand certain sections, you may have to see your association attorney. And check your homeowners insurance policy - it may have some language in there.

At first blush, it would appear the homeowners are responsible for their own tanks and the community would be responsible for the field. You might also need to check with your county - I would think someone would have to ensure these fields are being maintained because if the tank fails that could affect the field and no one wants that yuck to get into the drinking water supply.

It may be time for a come to Jesus meeting with your homeowners to learn what's at stake. Perhaps you should have them inspected and everyone will know where they stand and what they'll have to do to fix it. If they're responsible for the tanks and don't take care of it, its possible they could be held personally liable for damage to the field. The association might be liable for damage to the septic field, which could mean a very very expensive special assessment to cover repairs and finds from the state.

As for the field have you had a reserve study recently to see it's condition and what needs to be done to keep it in order? If not, or its been years since you had the last one (over five years) get one done immediately. That, plus the risk of a special assessment might persuade people to take this seriously. Good luck!




MarkD13
(Florida)

Posts:2


04/23/2021 2:06 PM  
Thank you for your responses CathyA3,LetA, and SheilaH!

Just to clarify, we have 5 homeowners in our Association. Each homeowner has their own septic tank and septic field located on their individual property (I incorrectly stated that we had a common septic field--that was wrong, my mistake). However, in our Bylaws (from 1999), the Common Area elements provision includes, "the water distribution system, sanitary sewer system and storm drainage system throughout the project." No other language in the Bylaws addresses the septic tanks and septic fields.

I am a relatively new homeowner, but over the years, the Association has paid to have each homeowners' septic tank cleaned out every 2 years even though they are individually owned by each homeowner, and it has worked pretty well for everyone. In addition to my liability concerns for the Association, my concern is that any new homeowner coming in will also expect the Association to pay for the removal of the old septic tanks/fields and installation of the new septic tanks/fields based upon the language above. The current owners all agree that the replacement of their septic tanks and septic fields are their responsibility, but there is nothing in writing for the future homeowner, just the common are elements language. I would like to present language at our next Association meeting to cover this ambiguity, vote on it, and add it as an addendum to our Bylaws. I don't believe we have a CCR document or any other governing documents-as I said we are very small, unsophisticated association.

As far as insurance, I have asked Association's insurance agent to pull our policy, send it to me, and let me know what it provides as far as coverage with respect to septic tank liability for releases. I am asking for each homeowner to provide me with their homeowners' policies as well to see that they say about liability for releases. I don't want to contradict the coverage in the insurance polices, but my thought is that if we vote to approve an addendum, we may also want to include a provision regarding septic tanks releases, requiring insurance for any and all releases from a homeowners' septic policy, and any other language that might be of value.

I hope that answers your questions, and again, thank you all for your interest and prompt responses to my query.

Take care,

MarkD13
AugustinD


Posts:300


04/23/2021 2:30 PM  
Posted By MarkD13 on 04/23/2021 2:06 PM
in our Bylaws (from 1999), the Common Area elements provision includes, "the water distribution system, sanitary sewer system and storm drainage system throughout the project." No other language in the Bylaws addresses the septic tanks and septic fields.

I am a relatively new homeowner, but over the years, the Association has paid to have each homeowners' septic tank cleaned out every 2 years even though they are individually owned by each homeowner, and it has worked pretty well for everyone. In addition to my liability concerns for the Association, my concern is that any new homeowner coming in will also expect the Association to pay for the removal of the old septic tanks/fields and installation of the new septic tanks/fields based upon the language above. The current owners all agree that the replacement of their septic tanks and septic fields are their responsibility, but there is nothing in writing for the future homeowner, just the common are elements language.
As I think you are aware, the current owners having an informal "agreement" does not mean the bylaws are amended to conform to that agreement. I consider the present situation to be risky. For example, any owner -- right now -- could have messed up his/her maintenance and cause a problem that, under the Bylaws, results in liability for all of you.

If people in this quasi-HOA want to amend the Bylaws in the manner you described, follow the requirements for amending that the Bylaws and possibly Michigan law require.

Is this HOA/community also a corporation?

In my experience, you absolutely do need an attorney to re-write the Bylaws properly to what you and your neighbors want.

I think you and your neighbors meet with an HOA attorney and say simply, "Here's what our Bylaws currently say about the sanitary sewer system. We want each owner to assume responsibility for her or his own sanitary sewer system." I kind of doubt this forum will have anything profound to say on the wording itself.

MichaelS56
(Minnesota)

Posts:179


04/23/2021 2:39 PM  
I would recommend that the Association stop paying for the homeowner's septic tank cleaning unless it states that maintenance in your governing documents, to have that service paid for by the Association. The Board should only pay for what the Association is only responsible for.
MelissaP1
(Alabama)

Posts:10126


04/23/2021 3:39 PM  
I have a septic tank but no HOA. However, wanted to point this out:

"the water distribution system, sanitary sewer system and storm drainage system throughout the project."

Need to point this out the difference. Water distribution system means the water going to one's house. It's the water supply from the utility. Drainage system is how it handles run-off and drainage of common area.

The "Sanitary sewer system" I don't think references individual's homes sewer systems. In this case Septic tanks. Septic tanks are individual sewer systems for the individual homes. The choice for a home is to have a stand alone system like Septic or for public sewage system.

Your HOA has the individual sewage systems owned and maintained by the owners. The HOA doesn't own those septic tanks. They may decide to switch over to a public sewer system if they want in the future. If that happens, then the HOA could be responsible for having a sanitary system in place.

Former HOA President
TimB4
(Virginia)

Posts:17599


04/23/2021 8:58 PM  
As others have pointed out:

1) Informal agreement = no agreement (get it in writing).

2) Put the language in the correct document - in this case, the covenants (deed restrictions)
JohnC46
(South Carolina)

Posts:10944


04/24/2021 8:21 AM  
As others have suggested. Get the agreements/understandings in writing.
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