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Subject: CC&R compliance
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TerryS6
(Pennsylvania)

Posts:13


05/17/2021 12:47 PM  
2018, New to HOAs. Read CC&Rs. Expected to do my own lawn maintenance etc per CC&Rs.
Found out the Association has been maintaining our private lots for years. Re-read
the CC&Rs. The document states the association is only responsible for the common
area. CC&Rs were never amended. Despite what the CC&Rs state, members are assessed
for full landscape services. The CC&Rs are being ignored on this and other matters.
Our planned community was intended to be a low cost alternative to a full service
condominium plan.
Has anyone had a similar experience?
KerryL1
(California)

Posts:8729


05/17/2021 1:16 PM  
Welcome, Terry, to the Forum. Would you please cite the section of your CC&Rs about lawn maintenance. Is there a difference between front and back yards (if applicable)?

Are your front lawns you separate interest, or limited (or exclusive) use common area per your CC&Rs?
TerryS6
(Pennsylvania)

Posts:13


05/17/2021 1:38 PM  
Thank you for the welcome. Our Association was founded in 1982. The specific
reference is to Article VI, maintenance responsibilities. There is property
held in common and property or Lots that are private. The only exception to
the division of responsibilities is when there is evidence of property
neglect. And, the Board must give 15days written notice before entering the
private lot. In our state of Pennsylvania, a bundle of laws-Title 68 prohibits
contract variation by mutual agreement. For our Association to continue the
practice of maintaining private Lots, The CC&Rs would have to be amended.
MelissaP1
(Alabama)

Posts:10590


05/17/2021 3:03 PM  
This is how many HOA's work. The common area is a shared expense amongst ALL the owners. It is why it is called "common area". So it would make sense the HOA/owners are paying for landscaping for this area. Your lots are private and not shared. So why would the HOA provide this service? You all still have to pay your fair share for the shared areas.

Now in our HOA, you owned the lot and house it sat one. ALL the property around your home was considered "Common". You had "exclusive use" to a certain area in your yard. However, the HOA owned everything else. We were responsible for providing lawncare according to our CC&R's. It was technically our ONLY responsibility.

Having the area around the homes as "common" property meant lawncare could freely go in/out doing their job. You could lock the gate if you did not want back yard mowed. However, that meant you were responsible for that area if did not allow the shared lawncare to enter.

I see your situation as your HOA has responsibility for shared common property and owners responsible for their own lots.

Former HOA President
TerryS6
(Pennsylvania)

Posts:13


05/18/2021 3:38 AM  
TY for your response. In doing research, was surprised to learn about the great many variations in the construction of HOA documents. In our association, Lots (15'x80')are private and not part of the commons.
Each owner is, per the CC&Rs, responsible for maintaining their own landscape- small as it is, and all
of their Unit from top to bottom. Some owners, though few in number, would like to do their own yard work.
Others like the convenience of a landscape service. If a vote were held, an amendment would likely pass.
However, this would be a slippery slope resulting in the alteration of property rights and deeds.
Compromise is possible. Rather than having an all inclusive landscape contract, it could be constructed
to service only the commons and the balance, ie the private Lots could be maintained on a fee for service
arrangement...giving owners a choice of opting in/out. No amendment would be needed. But, our Board will
not consider the idea nor acknowledge that they are violating the CC&Rs.They seem confident that no one
will go to the effort and expense of a legal challenge. By the way, there is no arbitration clause in our
CC&Rs.
So how common is this type of behavior among HOAs?




AugustinD


Posts:1920


05/18/2021 7:24 AM  
Posted By TerryS6 on 05/17/2021 1:38 PM
In our state of Pennsylvania, a bundle of laws-Title 68 prohibits contract variation by mutual agreement.
I do not think you are reading this part of Title 68 correctly. For example, for planned communities, Title 68 says:
===
Title 68
Section 5104. Variation by agreement.
Except as expressly provided in this subpart, provisions of this subpart may not be varied by agreement, and rights conferred by this subpart may not be waived. A declarant may not act under a power of attorney or use any other device to evade the limitations or prohibitions of this subpart or the declaration.
===

For our Association to continue the practice of maintaining private Lots, The CC&Rs would have to be amended.
Amendment is preferred, but I also think that "course of conduct" may play a role here. For example, Title 68 Section 5108 speaks of estoppel applying. The HOA and its membership appears to have agreed (even though it's not in writing) that the membership would pay for collective maintenance of each members' lawn.

I am not an attorney. I am sharing impressions based on much reading over the years and observing directly some litigation between HOAs and HOA members.

I am curious: How many lots are there? How much is budgeted each year for landscaping?

I hope you have pondered that, when it comes to landscaping, economy of scale plays a huge role in determining what each lot will pay. I do not like that the board appears to be violating the covenants here. Then again, I expect that each lot contracting separately with the landscaper of its choice would result in people paying a lot more. Worse (from where I am sitting), each lot contracting separately may mean lawn mowers, leaf blowers et cetera are blasting five or six days a week.

You asked how common violating a major covenant is. Violating covenants in general is pretty common. But this does not make it all right. Case law is full of long, angry, costly disputes between HOAs and HOA members and yes, almost always involving covenant violations. Right now, I am observing litigation that has been going on between a HOA and one member for about two years. The HOA is the plaintiff. The HOA violated covenant after covenant as it persecuted the member. The HOA's costs are up to about $100,000. The IMO deluded HOA Board, abetted by IMO a prostitute-like HOA law firm, thinks it will recover its expenses from the member. HUD is now involved extensively (though not having passed judgment yet). The HOA member just retained (signed a contract with) a fair housing attorney who is a partner with a nationally known civil rights law firm. The fair housing attorney is working either pro bono or on contingency. I expect at least another year before this dispute is settled.
AugustinD


Posts:1920


05/18/2021 8:03 AM  
TerryS6, I hasten to add that I do not like what's going on here. For one, liability concerns arise. Because of the many years of oral agreement to do xyz in exchange for payment of ___ dollars per month per member, when damage to property or injury to a person occurs, resolving liability will not be pretty. I think you are right to seek something written down with the legal force of a contractual term. A HOA attorney should be consulted. If you are not on the board, then I suggest you urge the HOA to consult an HOA attorney about the prudence of the HOA continuing to provide landscaping services, and assessing members for same, without something in writing. You could also inquire about whether the HOA insurer has been informed of what the HOA is doing. Insurers often have pithy input, based in law, into how a HOA should or should not be run, especially if the HOA wants to continue to have insurance.
JohnC46
(South Carolina)

Posts:11665


05/18/2021 9:47 AM  
Terry

This landscaping is on going and is being paid for. I say either leave it alone or incorporate it as a service offered. I say do not let individual owners do as they wish which could make for a hodgepodge of landscaping types and quality.
CathyA3
(Ohio)

Posts:2599


05/18/2021 1:44 PM  
There are a couple HOAs near me (single family homes, individual lots, lots of green space, clubhouse/pool, etc.) and the HOA provides lawn care for the patio home sections (smaller homes, smaller lots). Another area HOA provides grass cutting for the front lawns only, and homeowners have the option of hiring the HOA's lawn care service to cut back and side yards as well. So I think this is not unusual even though these small lawns are not "common area" or owned by the HOAs in question.

I think that your CC&Rs don't need to specifically mentioned lawn care as an HOA service, although they may. If they don't, I'd look for some language that gives the HOA the right to include utilities or other charges as part of the assessment, leaving it up to the board to decide if it makes sense or not.
JohnC46
(South Carolina)

Posts:11665


05/18/2021 2:04 PM  
Posted By CathyA3 on 05/18/2021 1:44 PM
There are a couple HOAs near me (single family homes, individual lots, lots of green space, clubhouse/pool, etc.) and the HOA provides lawn care for the patio home sections (smaller homes, smaller lots). Another area HOA provides grass cutting for the front lawns only, and homeowners have the option of hiring the HOA's lawn care service to cut back and side yards as well. So I think this is not unusual even though these small lawns are not "common area" or owned by the HOAs in question.

I think that your CC&Rs don't need to specifically mentioned lawn care as an HOA service, although they may. If they don't, I'd look for some language that gives the HOA the right to include utilities or other charges as part of the assessment, leaving it up to the board to decide if it makes sense or not.



Our association is small patio homes with each home owner owning their own land. It is in our Covenants that the HOA will maintain all landscaping (backyard exception below). It is our biggest budget item and also one of the main reasons people want to buy here. Our homes sell in about a week or two. As we maintain the landscaping and strive for a common appearance, our owners are not allowed to plant anything. Planters are allowed on driveways, on porches, etc. but not in/on any area maintained by the association.

Each home has a backyard about 20ft x 30ft surrounded by a 7ft privacy fence. The HOA does not maintain this area. One can landscape, plant, grow, etc. anything they want behind this fence. There are several gardens. One can grow dope behind there for all we care.

Yes we have had a person or two say well I want to maintain my own lawn. We basically say no. When someone says well it is my property. We say yes but read the Covenants you signed and pay attention to the landscaping portions of them. That ends it.

As I said, the HOA doing the landscaping is one main reason people want to live here.
TerryS6
(Pennsylvania)

Posts:13


05/19/2021 5:29 AM  
TY all for your responses. Legal opinions were obtained. The consensus was that an amendment would be necessary if the Association wants to continue the practice of maintaining private Lots. Depending on the wording, such an amendment would create a ripple effect re property rights, values, liability and ultimately our deeds.

Also, under Pa Title68, contract variation by mutual agreement definitely expired. The only question was if
variations prior to 1996 were grandfathered in. There was no definitive answer and would be dependent on judicial discretion for outcome.

When the issue of tree maintenance/removal on private Lots came up...the Board wanted to distance itself from
any liability because of the cost. Some members said 'hold on'. In for a penny in for a pound. In so many words...you took on the maintenance responsibilities for private lots and now you are accountable.

The Board wiggled out of this situation by quickly getting a legal opinion and just in time. Wind knocked over
an oversized tree on a private lot, luckily w/o damage to the unit. The have not learned their lesson. Other
liability issues will surface and already have. Eg damages to exteriors caused be the landscaper etc.

As a whole, the Board has gone into the silence mode ie do not disturb and 'let sleeping dogs lie'. I was
a Board member and my lone voice was ignored. For the above, and due to financial irregularities bordering on
maleficence, I was advised by private council to remove myself from the Board. This was my first personal
experience with an HOA and it has not been a good one.

Again, TY all for your responses. Hope this topic has provided some food for thought.






TerryS6
(Pennsylvania)

Posts:13


05/19/2021 6:21 AM  
Side-note:

Augustine,

Pa Title68 Sec 5104, re Variation by Agreement was to the best of my knowledge never altered by Pa legislators. The words 'Except as provided by this subpart' allows for change if the circumstances ever arise. The same is true (using the same wording)when the sections re condominiums(1980) and co-ops(1993) were enacted...at least
this is how it was explained to me. In other words, there are no exceptions. This short nugget of a paragraph
leaves you dangling. The document then simply jumps to Sec 5105.

I was looking for legal loopholes ie CYA reasons to protect the Board- to explain away its voluntary departure from our CC&Rs re landscape responsibilities...and hit a wall. We had nothing in writing and could not be sure
if there was a grandfather effect in play given that the variations occurred prior to 1996.

Legalese is hard to digest. Ask another lawyer and you'll get another opinion. LOL
AugustinD


Posts:1920


05/20/2021 2:25 PM  
Posted By TerryS6 on 05/19/2021 6:21 AM

Pa Title68 Sec 5104, re Variation by Agreement was to the best of my knowledge never altered by Pa legislators. The words 'Except as provided by this subpart' allows for change if the circumstances ever arise.
We disagree. Regardless, sounds like your HOA is making progress on the main issue.
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