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Subject: COMMON AREA CONSISTENCY
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DonnaR8
(Tennessee)

Posts:4


09/21/2021 11:36 AM  
Our HOA board has determined that all the area around each home except for a 3 foot perimeter is COMMON AREA. ( Although the CC&R has some conflicting statements.... The CC&R states that each homeowner has access to "EXCLUSIVE" common area around their home (to distinguish between the medians and retention ponds). The HOA says that the homeowner should not be involved in caring for the exclusive area around their homes and yet the HOA could not possibly water, fertilize, weed and mulch that massive a property. The HOA does not want to address the drainage issue behind homes on one side of the street that continue to have issues from ground water during torrential rains...(French drains are needed) . But they do want to spray the entire common area for "armyworm" infestation.

Sometimes they vote that the COMMON AREA.....including the "EXCLUSIVE" common area of each lot is the responsibility of the HOA and sometimes they want to vote that it is not. This is a small community of 32 unattached homes. Some patio and some two story. I serve on the board and feel as though the inconsistency in their deliberations is going to cause legal issues down the road. They paid $2,000 to have the area around the Utility and transformer boxes landscaped for 6 yards, after some homeowners had already paid out of pocket or completed their own.And the homeowners are not aware that this was done. ( A few areas were done by the developer). Now they want the homeowners to pay for 3 or 4 yards that don't look as good as the rest of the street because they say that it is the HOA's responsibility to pick up the slack for these homeowners and see that "the common area" around all these homes is cared for. Currently we pay $75 a month to have our yard mowed, edged and blown off.... I don't see how they can use HOA funds to address needs in some yards and not all yards.... ( which our meager budget absolutely could not support)

I would greatly appreciate any insight or opinion...
SheliaH
(Indiana)

Posts:4220


09/21/2021 12:17 PM  
You're on the board - did your colleagues consult with anyone (perhaps a surveyor to verify once and for all where the common area begins and ends?)
Perhaps the documents have something as to where the common areas are located? What was the response when you said this could cause legal issues down the road? If you didn't say ANYTHING, that's a problem and you should speak up. They may not listen at first, but at least you tried.

Or they'll be more likely to at least consider the ramifications when you run some numbers. Considering the number of homes you have, your monthly income, and what it already pays for, you're probably right that $75 a month won't support the association taking on more responsibilities - and if the documents don't require this, why are they doing this? Was there talk of increasing the assessments? If not, why didn't you bring that up?

If the documents have conflicting information, it would be helpful if the board would consult the association attorney about this - maybe someone (several?) are misinterpreting everything or making things up as they go along, and neither approach is good. maybe someone needs to take a look at what was filed with the city or county when the community was developed - where are the property lines? Resurveying the area to verify who's responsible for what may also be a good way to approach this before the board says the association will do X or Y.

You don't say how many are on your board, so for now you'll have to bring this up frequently - they might ignore you at first, but if you encourage other homeowners to attend and listen to the proceedings, they might express the same concerns and that'll prompt the board to do something (it's hard to blow off the people who elect and re-elect you). Good luck!
JohnC46
(South Carolina)

Posts:11507


09/21/2021 12:20 PM  
Donna

They should not be using association money to bring the areas you mentioned up to their standards. The BOD should fine owners that do not.

All that said, their could well be an issue of the BOD having the authority to dictate owners do it.
JohnC46
(South Carolina)

Posts:11507


09/21/2021 12:21 PM  
Posted By JohnC46 on 09/21/2021 12:20 PM
Donna

They should not be using association money to bring the areas you mentioned up to their standards. The BOD should fine owners that do not.

All that said, their could well be an issue of the BOD having the authority to dictate owners do it.



Make it .....there could....
PatJ1
(North Carolina)

Posts:246


09/21/2021 12:53 PM  
***Our HOA board has determined that all the area around each home except for a 3 foot perimeter is COMMON AREA.***

Is your HOA still under builder control?

"Unattached homes"? Are these patio homes that have more designated common area or is the Board just determining that they will maintain areas that are owner responsibility on lots deeded to owners?

Common area as stated in your governing needs to be determined.

"Limited Common Property" is often described as "EXCLUSIVE" because of it's use and proximity. A porch exclusively used by a resident is limited common property, but the HOA may still be required to maintain it.

Before you can determine "who can do what where", you need to research "who owns what where". HOA or owner.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
DonnaR8
(Tennessee)

Posts:4


09/21/2021 1:03 PM  
Board members only consulted with the developer who in an open meeting stated that homeowners were responsible for the area around their homes. Upon pressure from a few interim board members he then said that it was intended that the HOA took care of the Common area..... On all items filed with the county the area is listed as a 7.4 area plot..... there are small "buildable areas" shaded for the home allowance but NO lot lines. (This is very frustrating ) There are 6 board members. There were 5 one resigned ..... then the President introduced him back on the board saying "we need his expertise in accounting".... We pay a management company that handles our books and does a superb job so a 6th member was unnecessary. The president's appointment was to balance the power as he already knew that 3 board members agreed that his interpretation of the common area was not correct. We have no Association lawyer.... only the one with the management company that I fear will not be objective when he knows who is paying the contract. The CC&R is very vague and even contradictory in places when it comes to COMMON AREA responsibilities. Two childhood friends and a friend of the family make up the "Ruling parties" of the board. We do not have Open Meetings and I believe if we did this "BULLYING" would cease. It is only the opinion of the three that counts and it is totally based on their interpretation. I am going to ask for open meetings and a change of venue.... ( currently meeting in President's family room) Also I believe publishing the minutes to keep the community posted would help.

Thank you for taking time to lend your input!!!!
CathyA3
(Ohio)

Posts:2464


09/21/2021 1:59 PM  
Who owns the land underneath each home, the association or the homeowners?

Your CC&Rs should also address who is responsible for maintaining what. In some communities the Limited/Exclusive Use Common Areas are the responsibility of the homeowners and in others the association is responsible for them. The board shouldn't have to guess at this.
DonnaR8
(Tennessee)

Posts:4


09/21/2021 6:52 PM  
The Homeowners own the land that the home sits on and about 3 feet out on every side... ( the developer put that in the CC&R but it is not an accurate measurement as each home has a different footprint on that space....) He changed the CC&R before he turned everything over to the HOA because some board members persuaded him to add the 3 foot clarification which was not in the original document. They had it done and recorded before anyone could object to their interpretation.

Home owners own what is called a "buildable lot" They pay taxes on the home, lot and a portion of the common area ( since there are 32 homes it amounts to one thirty-second of the common area....( that is what the county tax assessor's office told me directly).

I have read the BY LAWS and CC&R cover to cover many times. It does not state who is responsible for maintain which areas. There are no lot lines on the registered Plat of the area. It is registered as a PUD. Yet all homes are free standing and there are NO amenities. NONE. No pool, no meeting room, no playground, no dog park.... Not even a parking lot. There are only 32 homes on our street. Three of the board of directors wants to take responsibility for everything that is not the home structure. Our fees are only $75 a month. After we pay the mowing contract and the management company this is little surplus to take care of anything. They just want to be able to control the environment. We really have no rebels or challenges to the CC&R document but they want to bully people into having a lawn service and raising the HOA fees to afford it. ( WE ARE NOT LIVING IN THE HAMPTONS) this is a new development and people are retired and want the HOA fees to stay low. There are 3 or 4 yards that don't look quite up to the other yards and so these 3 board members want to have them tended to at the expense of everyone else on the street. It is purely a CONTROL issue.....But with no difinitive wording it is hard to challenge the 3.
CathyA3
(Ohio)

Posts:2464


09/22/2021 5:40 AM  
Thank you for the clarification. This sounds a lot like what we refer to as "landominiums" around here. Homeowners own the land under their homes as well as a buffer zone such as three feet. In the communities I'm familiar with, the association handles lawn care in the common area beyond the buffer zones as well as snow removal, but homeowners take care of their own plantings in the areas they own (there are some community rules about things such as what kinds of plants are acceptable or prohibited and upkeep standards).

What I'm seeing as issues:

* Poorly defined common areas and buffer zones, including absence of plat lines and changes to the CC&Rs by the developer (maybe without thinking things through).

* A shifting cast of characters on the board that haven't got their feet under them yet (in fairness this would be a bit of a challenge for experienced board members as well).

What I would want to do, assuming the money is available:

* Have the CC&Rs reviewed by a knowledgeable HOA lawyer with an eye to amending inconsistent or vague definitions of the property and the responsibilities of the association and homeowners. You'll never have consistency unless the legal foundation is consistent. What you have now is a recipe for continued squabbling.

* Get training for the board asap. There are good free resources on the web that address the board's obligations and the limits of their authority.

* Tackle the lawn care issue. As things stand now, my understanding is that the buffer area around homes belongs to homeowners. It is not Common Area or Limited Common Area (if the developer changed this on the fly, there may be a legal issue if what he did contradicts the papers people signed when they bought their homes - hence my recommendation for the lawyer). Without any language in the CC&Rs addressing who is responsible for what, it would be hard for the association to make a case that the buffer zones are their responsibility. On the other hand, since the HOA does own the Common Area, it has a vested interest in what happens in these buffer zones (eg, insects or drainage issues).

Good luck with this. I think this is a resolvable issue, but you need to get the CC&Rs in order and get the board up to speed.

DonnaR8
(Tennessee)

Posts:4


09/22/2021 7:17 AM  
Thank you so very much for taking time to outline the problem. We are all in our first year and struggling to establish limits. Your listing of "next steps" is extremely helpful and gives me some direction.
CathyA3
(Ohio)

Posts:2464


09/22/2021 8:26 AM  
One other thing to consider: who owns the street and the water and sewer lines, the HOA or the city/county/etc.?

It's pretty common for developers to keep assessments low while they're trying to sell homes, but these assessments probably won't be realistic in the long term. It sounds like you have only greenspace to worry about - but if you also own infrastructure, the assessments will need to cover maintenance of these items which can be costly.

The $75 per month sounds maybe OK if the only thing you're dealing with is lawn care, but it seems low if you need to also pay for insurance (you do) and definitely on the low side if you also need to be accumulating reserves for future big ticket items such as street re-surfacing or concrete replacement.

Reserve Studies https://cedarmanagementgroup.com/hoa-reserve-study-community/)

HOA Insurance https://www.lawyers.com/legal-info/real-estate/homeowners-association-law/hoa-insurance.html



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