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Subject: HOA, Driveway, Cracks and Spalling
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Author Messages
KyleF
(Oregon)

Posts:4


10/03/2015 3:45 PM  
Hi guys,

I had a question about an HOA noticed I received recently regarding my driveway. I'd like your opinion on how enforceable their request of "fix driveway" is?

Descriptively, my driveway is about 35ft long, 2 cars wide before it hits the sidewalk. At the sidewalk end, I've got some cracking and spalling that has occurred next to a 40ft tree. The cracked and spalled area is about 1ft by 3ft in size and it situated next to a 40ft tree. After a recent shake up in the ARC committee, this is the first time I've received a notice about my driveway after living in the HOA for close to 10 years now.

Given the excerpt below from my CC&R's, would you say "fix driveway" is something that the HOA has authority over? And/or can enforce?

I believe that the "other than normal wear from use and the elements" line seems to describe exactly what my driveway is experiencing.

EXTERIOR MAINTENANCE

1. Maintenance of Common Areas and Exterior Maintenance. Association shall maintain or provide for the maintenance of the Common Areas, and, in addition, the Association may, if it so desires, provide exterior maintenance upon and for each Lot subject to assessment hereunder, including, without being limited to, the following: paint, repair, replace and care for roofs, gutters, downspouts, exterior building surfaces, trees, shrubs, grass, landscaped areas, walks, and other exterior improvements. Such exterior maintenance shall not include glass surfaces. In the event that the need for such maintenance or repair is caused through the willful or negligent act or omission of the Owner, his family, tenants, guests, or invitees, the cost of such maintenace or repairs may, in the discretion of the Directors, be added to and become part of the assessment to which such Lot is subject, and a lien and enforceable in the same manner. Damage caused by fire, flood, storm, earthquake, riot, vandelism, or other causes other than normal wear from use and the elements shall be the responsibility of each Owner and not included in any maintenance provided by the Association.

Thanks for your time!

-Kyle
LarryB13
(Arizona)

Posts:4099


10/03/2015 8:00 PM  
Kyle,

I see nothing in what you quoted that would require you to repair your driveway.

The passage you quoted refers to maintenance performed by the association on either its own property or on individual lots. I see nothing that even remotely addresses your issue. The entire passage is so vague that I doubt that it would be enforceable. Is this the section of your CC&R's they are claiming you are in violation of?
BobD4
(up north)

Posts:916


10/03/2015 8:47 PM  
KyleF Oregon :

A problem with cherry-picking an excerpt - rather than reviewing an entire document - is that something like an owner's positive obligation to maintain the unit, may be elsewhere & very specific.

Despite the last sentence, what you quoted appears to include merely a limited right for the Corporation to intervene in an owner's area of maintenance responsibility and - in some but not all cases - to 'charge back' for its intervention.

Yes the last sentence in the quoted section may address root-damaged driveway deterioration as an owner responsibility, maybe mis-drafted in a way that unintentionally puts such now beyond Corporation intervention & charge-backs.

Would be strange way - standing alone by itself - to lay the burden onto an owner as opposed to some Corporation duty to intervene. There must be something else in the governance documents or state law.

What if you just dare to ignore the Notice ? Cracked concrete only 3 ft 2 ?

If you are subject to Oregon's Oregon ch 94 (2013)Planned Communities Act. note that it empowers fines that are lienable. ch 94.630 and 94.709
https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors094.html

If you are instead subject to the corresponding ch 100 Condominium Act, I don't see a fining power.
https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors100.html


Crazier things have happened than over a mere 3 ft2 of cracked driveway. Maybe here worth quietly fixing it yourself /pick & chose your battles / get co-operation over the tree.
TimB4
(Virginia)

Posts:16700


10/04/2015 8:38 AM  
Kyle,

The section you quoted doesn't specify who's responsibility the driveway should be.
It says that the Association may maintain exterior items, but doesn't require them to do so. The closest section that may support the Associations position is the last sentence [emphasis added]:

Damage caused by fire, flood, storm, earthquake, riot, vandelism, or other causes other than normal wear from use and the elements shall be the responsibility of each Owner and not included in any maintenance provided by the Association.


However, as Bob pointed out, without access to other documents, what you provided doesn't allow us to actually answer your question. In fact, it raises others:

1) What exactly are they complaining about - problems with the full driveway or problems with the apron (the section from the sidewalk to the street), which you gave a little more detail about?

2) Does the Association normally maintain the driveways, paint your homes, etc.

Keep in mind that cracking, uplifting, etc. of concrete or asphalt due to roots, is not typically considered normal wear and tear. It's damage caused by the tree for failure to remove the tree or cut back the roots when the tree got too big.

Keep in mind that spalling normally occurs due to freezing and thawing of water. This is most often associated with the overuse of de-icers in the winter. There are other reasons, but determining the actual cause would require more expense then simply repairing the concrete.


Now, determining liability is a whole other issue. Perhaps the city/county/hoa is responsible for the spalling due to use of salt to clear the roads, which is then left to sit on the concrete. Perhaps the homeowner simply uses too much deicer. Perhaps the homeowner didn't keep the end of the driveway clear of snow/slush, allowing the accumulation of the deicer product. Perhaps keeping the driveway clear was the Associations job.

As for the tree roots, who owns the tree? Where they aware of the problem when it first stated? Did the tree owner or the home owner every have the tree inspected by an arborist over the years (if so, what was the report)?


Again, one may be able to argue a shared responsibility and split the cost. However, if one side disagrees with such an argument, the issue will need to be resolved in the courts. If it goes to court, it most certainly will be more expensive causing the fight to be over principal vs. the actual cost of the repair.


KyleF
(Oregon)

Posts:4


10/04/2015 11:30 AM  
Thanks Larry, Bob and Tim. I appreciate the response.

I know my first post was a little light on details. For more info, here's what my driveway looks like[url]http://puddlehunters.net/driveway.jpg[/url]. The dirt patch to the right is where our tree is located.

The 3 HOA documents that I'm aware of are our Bylaws, CC&R's and Enforcement policies. If you get bored, I've listed the documents below. They are relatively small at around 13 pages long. Is there something I'm missing in any one of those documents relating to driveway upkeep?

Bylaws[url]http://puddlehunters.net/Bylaws.pdf[/url]
CC&R[url]http://puddlehunters.net/CCR_Phase_2.pdf[/url]
Enforcement[url]http://puddlehunters.net/Enforcement.pdf[/url]
KyleF
(Oregon)

Posts:4


10/04/2015 11:34 AM  
Oops, I guess those url tags didn't work. Hopefully these do.

driveway
Bylaws
CC&R's
Enforcement
TimB4
(Virginia)

Posts:16700


10/04/2015 1:29 PM  
Kyle,

In my opinion, the driveway is in need of repair.


Your documents failed to mention who is to repair driveways.

Therefore, it's a gray area. Gray areas are interpreted by the Board until challenged in the courts and said interpretation is then ruled on by a Court.

The only other option is to vote in a new board that will interpret things differently.
KyleF
(Oregon)

Posts:4


10/04/2015 1:37 PM  
Thanks Tim. Do you happen to see anything in the documents about the level of upkeep is required for driveways?
TimB4
(Virginia)

Posts:16700


10/04/2015 2:00 PM  
Article VI, Section 3, (d) of the CC&Rs specifies what happens if a member fails to keep any portion of their property in "good condition," which is a subjective term.

Article X, section 7 of the CC&Rs specifies that the owner shall maintain "in proper condition" any area between street and building (specifically mentioning sidewalks) in good condition.

As I said, based on your picture I would consider that your driveway needs repaired.
I will further say that the damage is to the point where I would no longer consider it in good condition.

To me, good condition would be minor blemishes (oil stain perhaps or minor spider cracks). However, the deep cracks, chipping, etc. moves it out of the good condition category.


My suggestion, if you don't have the funds readily available, is to ask for time to pay for it. I would provide you 1 year. However, that is based on having no knowledge on how long the Association has been informing you of this issue. Additionally, what I would do and what your Association would agree to may be completely different.
KellyM3
(North Carolina)

Posts:1488


10/06/2015 4:26 AM  
Tim offers sensible advice for an HOA environment. HOAs can be tyrannical but they also can ensure a higher standard of community maintenance that's inconvenient when you're subject to a repair request.
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