Developer will not make road repairs for VDOT takeover

Started by NickS3 • 4 replies • 2147 views

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NickS3 (Virginia)
Posts: 2

Posted:

Our developer has refused to make repairs required for VDOT to takeover roads. He has an outstanding road bond, but the county is saying it's a long drawn out process to go after his bond. What legal rights do we have in forcing the repairs to be made by either party?

DanielH1 (California)
Posts: 482

Posted:

I assume that VDOT is Virginia Department of Transportation.

I'd consult a lawyer about the HOA suing the developer. If the developer is bankrupt, that'll be a consideration. The lawyer should review the contractor's contracts and documentation to determine if the developer has an obligation to make the road to VDOT standards.

Going after his bond, anyway, is a good idea, even if it may take a long time. You can lock his money up and use it as a negotiation position: he fixes the road and you allow him to get back his bond. You may not be able to get your hand's on his bond anytime soon but you should be able to prevent him getting his bond back.

DavidW5 (North Carolina)
Posts: 565

Posted:

Quote:

Posted By NickS3 on 03/01/2011 11:48 AM
Our developer has refused to make repairs required for VDOT to takeover roads. He has an outstanding road bond, but the county is saying it's a long drawn out process to go after his bond. What legal rights do we have in forcing the repairs to be made by either party?

Nick,

We would need a lot more information to give you advice:

1. Can we assume the roads were originally private and now your HOA wants the state to take over maintenance?

2. Were the roads originally built to state standards?

3. Are the "repairs" solely to bring the roads back up to state standards or are they modifications to bring roads that originally were not designed to state standards up to that level?

4. Has your HOA transition to homeowner control or is the developer still in control?

5. If there are outstanding road bonds, does the HOA have title to the roads? Who holds the bonds? Most likely it is the county in which your HOA is located.

6. Have you involved the county public works officials in the issue?

In our HOA we had a serious issue with a section of the roads not meeting VDOT standards due to the use of organic soil under the road beds. The county and VDOT jointly insisted that the developer post a $1.4M bond for 5 years to insure that the roads would not deteriorate due to decomposition of the organic material. VDOT committed to accept the roads after that point if no problems showed up and if the HOA chose to make them public.

DorothyO (Washington)
Posts: 293

Posted:

Nick, STAY ON THIS! Do whatever you have to do to make that developer fix those roads, no matter how long and drawn out it turns out to be, so the state will assume responsibility. UNLESS you want the HOA to maintain ownership, but then you will have to fund a pretty hefty Reserve fund for maintenance and repair.

Seventeen years ago, when building the second phase of our development, a different asphalt company was used but the new streets had not begun to degrade. The streets were done to code, but still began to deteriorate precipitously. According to rumor, the developer (also a homeowner) sued the asphalt company to fix the streets, got the money, did not fix the streets, and turned them over to the city, while they were still in "good enough" condition for the city to accept them, which it did. Because the streets were done to code, but for a ton of variable reasons still degraded, the city, with no malfeasance evident, enjoys sovereign immunity from lawsuit.

Sometime in between the streets degrading as our common areas and the city taking over the degrading streets this young HOA dropped the ball. The statutes of limitations to sue the developer expired, and the city, while responsible for maintaining its city streets, cannot be sued, AND, here in 2011 is broke. There ain't no money going to fix a seventeen-year old, low-traffic, street when the main 100 year-old infrastructure in this town is collapsing daily.

My point: follow DavidW5's suggestions, especially #6 -- become on a first-name basis with your city engineer, your streets division supervisor, your state, county and city officials. Also, make sure all the homeowners are up-to-date and aware of exactly where things stand, where they could stand, and where they don't want them to stand.

.

NickS3 (Virginia)
Posts: 2

Posted:

Thanks for the advice everyone. Here are some more details:

1. The roads have always been private, and maintained by the Developer. He has been working with the State to have inspections done on the road system. VDOT states the roads are so bad, they haven't even created a final punchlist for him. He responded to the State that he has no money to make repairs, and nothing has moved forward from there.

2. I'm not sure if the roads were ever built to State standards. I'm no road expert, but I would say no. When it rains water bubbles up through the roads, and when you walk on sections after a good rain, the road is actually soft.

3. The repairs are solely to bring up to standards. He did repair a section of curb that needed to be repaired. They were only able to talk him into doing that because it was a huge safety hazard.

4. This is where I think things are wrong. The HOA was formed a few years ago, we are paying dues, but the Developer owns the common areas (still in his name), and of course has control of the roads. He reached his 80% built clause that was in the convenants for handover to HOA. We take care of the common areas, and have had to pay for snow removal on the roads. He has helped a little bit, but in my eyes he should be responsible for 100% of it.

5. There are outstanding road bonds. I have not been able to get any information other than that from the county.

6. County seems to not want to help with this at all.

I am hoping to speak with a lawyer today. The problem is it has always needed legal counsel I feel for the handover to HOA and State, but funds have always prevented that. Until this year, dues were $50, and there are 42 homes. You do the math, there's not a whole lot there for maintenance, and paying for a lawyer to deal with all this crap. I'm really confused on where to go from here. Like I said he has helped us some int the past with money. I don't want to tick this guy off, unless I know we can do something. Some help is better than nothing at all.

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