BB5 (Missouri)
Posts: 145
Posts: 145
Posted:
What is the criteria for something to be considered "Common ground" does it have to be owned by the association ?
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common ground
Started by BB5 • 26 replies • 6194 views
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KellyM3 (North Carolina)
Posts: 2,239
Posts: 2,239
Posted:
Generally, common areas are owned collectively by the HOA. This can include areas where the general public may not have access yet the HOA pays for maintenance. Condo or town home decks, for instance. But, the definition is rather flexible.
MelissaP1 (Alabama)
Posts: 13,836
Posts: 13,836
Posted:
Common area are owned by ALL the members/owners in the HOA. Each owner may have "exclusive use" of an area around their home but it is still within the realm of common property. That translates to the ability of the collective owners/HOA to enforce rules and regulations of the common grounds.
In our HOA the owners own ONLY the house and the lot the house sits on. The lot happens to be the size of the house. So everything outside of that is maintained and controlled by the HOA. This enables the HOA to provide lawncare services that is required to even if the owner doesn't pay. That way the area is kept up and uniform.
Common ground is also why a HOA can foreclose on a house in a HOA for non-payment of dues. If the house wasn't on common property and part of a HOA, it would be considered a stand alone home and not subject to any HOA restrictions but banks/city/county rules/laws. Just in case people wonder why a HOA has the right to foreclose.
In our HOA the owners own ONLY the house and the lot the house sits on. The lot happens to be the size of the house. So everything outside of that is maintained and controlled by the HOA. This enables the HOA to provide lawncare services that is required to even if the owner doesn't pay. That way the area is kept up and uniform.
Common ground is also why a HOA can foreclose on a house in a HOA for non-payment of dues. If the house wasn't on common property and part of a HOA, it would be considered a stand alone home and not subject to any HOA restrictions but banks/city/county rules/laws. Just in case people wonder why a HOA has the right to foreclose.
Former HOA President
DavidW5 (North Carolina)
Posts: 565
Posts: 565
Posted:
Quote:
Posted By MelissaP1 on 05/11/2012 7:01 AM
Common ground is also why a HOA can foreclose on a house in a HOA for non-payment of dues. If the house wasn't on common property and part of a HOA, it would be considered a stand alone home and not subject to any HOA restrictions but banks/city/county rules/laws. Just in case people wonder why a HOA has the right to foreclose.
Common ground is also why a HOA can foreclose on a house in a HOA for non-payment of dues. If the house wasn't on common property and part of a HOA, it would be considered a stand alone home and not subject to any HOA restrictions but banks/city/county rules/laws. Just in case people wonder why a HOA has the right to foreclose.
Melissa,
I don't think that is correct. In our HOA our entire lot is private property not common property. Common property is from the driveway apron - outward. Despite this, our HOA has the ability to enforce restrictions on such things as exterior house color, erection of flagpoles and bird feeders, etc. These restrictions are spelled out in our governing documents.
LawrenceC1 (Georgia)
Posts: 480
Posts: 480
Posted:
Quote:
Posted By DavidW5 on 05/11/2012 9:30 AM
I don't think that is correct...
David,
You are right about this. The right to foreclose comes from contract law, which governs the agreement between homeowners and the homeowners' association. Each owner is bound by this contract that "runs with the land" as soon as they buy a house that is part of a homeowners' association.
Even though a homeowner has clear and exclusive title to their property does not relieve them of their responsibilities as laid out in the governing documents of the Association.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Quote:
Posted By BB5 on 05/11/2012 6:15 AM
What is the criteria for something to be considered "Common ground" does it have to be owned by the association ?
What is the criteria for something to be considered "Common ground" does it have to be owned by the association ?
As others have posted, common area is property that is not deeded to an individual owner.
Why do you ask? That is, what issue occurred that caused the question to be asked?
CarolynL2 (Florida)
Posts: 73
Posts: 73
Posted:
In our Florida HOA community we have common area walls which have been determined by several legal opinions to be owned by the individual homeowners but have an easement of use by all the association members. The deed restrictions designate the walls common area and create an easement of use (not ownership) in all common area. The walls are built upon the individual lots which are clearly defined in the deed restrictions as not a part of the common area. There is no easement for the walls to have been built upon the lots and they were never severed from the lots deeded to the lot owners in fee simple. The plat does not show any common area within the lots. All the legal opinions we have received have determined because of the deed restrictions which run with the land the walls are common area for use by the membership but are individually owned.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Quote:
Posted By CarolynL2 on 05/13/2012 4:49 AM
In our Florida HOA community we have common area walls which have been determined by several legal opinions to be owned by the individual homeowners but have an easement of use by all the association members. The deed restrictions designate the walls common area and create an easement of use (not ownership) in all common area. The walls are built upon the individual lots which are clearly defined in the deed restrictions as not a part of the common area. There is no easement for the walls to have been built upon the lots and they were never severed from the lots deeded to the lot owners in fee simple. The plat does not show any common area within the lots. All the legal opinions we have received have determined because of the deed restrictions which run with the land the walls are common area for use by the membership but are individually owned.
In our Florida HOA community we have common area walls which have been determined by several legal opinions to be owned by the individual homeowners but have an easement of use by all the association members. The deed restrictions designate the walls common area and create an easement of use (not ownership) in all common area. The walls are built upon the individual lots which are clearly defined in the deed restrictions as not a part of the common area. There is no easement for the walls to have been built upon the lots and they were never severed from the lots deeded to the lot owners in fee simple. The plat does not show any common area within the lots. All the legal opinions we have received have determined because of the deed restrictions which run with the land the walls are common area for use by the membership but are individually owned.
Why would one want to "use" the walls as in common area usage?
Thanks
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
John,
One word - Condominiums
One word - Condominiums
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Quote:
Posted By TimB4 on 05/13/2012 6:48 AM
John,
One word - Condominiums
John,
One word - Condominiums
Tim
I understand that, but the post I quoted/asked about was referencing walls that are on ones lot that the lot owner is responsible for but were also ruled as common elements. Meaning single homes, not condos, thus my interest as our homes are single homes.
CarolynL2 (Florida)
Posts: 73
Posts: 73
Posted:
The walls were added for esthetics as an afterthought. In order to insure the consistency of appearance of walls on private property he placed a deed restriction which allows the association to spend money on all areas designated as common area.
Carolyn
Carolyn
CarolynL2 (Florida)
Posts: 73
Posts: 73
Posted:
I should also have stated that the association must ask permission to enter the lots for maintenance purposes because there is no easement for maintenance and no requirement for the association to maintain the walls. If the homeowner refuses then the Board would send them notice that they are required to maintain the area. If the homeowner fails to maintain the area in a manner satisfactory to the Board then the Board with 2/3 vote of approval may complete the work and may charge the owner (although I don't think they would charge the homeowner).
This was initially a very complicated issue for our association but we have sought legal opinions from several different attorneys and they all have agreed on this process.
Carolyn
This was initially a very complicated issue for our association but we have sought legal opinions from several different attorneys and they all have agreed on this process.
Carolyn
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
John,
I had interpreted that section as being town homes, duplexes, etc. that were operated as a condominium and the easement being associated with plumbing, electrical, etc.
Fortunately Carolyn cleared up my misinterpretation.
I had interpreted that section as being town homes, duplexes, etc. that were operated as a condominium and the easement being associated with plumbing, electrical, etc.
Fortunately Carolyn cleared up my misinterpretation.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Quote:
Posted By CarolynL2 on 05/13/2012 7:31 AM
I should also have stated that the association must ask permission to enter the lots for maintenance purposes because there is no easement for maintenance and no requirement for the association to maintain the walls. If the homeowner refuses then the Board would send them notice that they are required to maintain the area. If the homeowner fails to maintain the area in a manner satisfactory to the Board then the Board with 2/3 vote of approval may complete the work and may charge the owner (although I don't think they would charge the homeowner).
This was initially a very complicated issue for our association but we have sought legal opinions from several different attorneys and they all have agreed on this process.
Carolyn
I should also have stated that the association must ask permission to enter the lots for maintenance purposes because there is no easement for maintenance and no requirement for the association to maintain the walls. If the homeowner refuses then the Board would send them notice that they are required to maintain the area. If the homeowner fails to maintain the area in a manner satisfactory to the Board then the Board with 2/3 vote of approval may complete the work and may charge the owner (although I don't think they would charge the homeowner).
This was initially a very complicated issue for our association but we have sought legal opinions from several different attorneys and they all have agreed on this process.
Carolyn
I can see that getting real tricky. Regardless of wall construction, the intend would be to make/keep them all alike.
If on common ground and the association was responsble then it simply a cost issue but your situation could get tricky.
Hope it does not.
EvelynB2 (Florida)
Posts: 17
Posts: 17
Posted:
"As others have posted, common area is property that is not deeded to an individual owner."
So if my driveway is deeded to me, the HOA can't come now and call it a common area and take over the maintenance (mowing etc and charging me for it)??
So if my driveway is deeded to me, the HOA can't come now and call it a common area and take over the maintenance (mowing etc and charging me for it)??
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Quote:
Posted By EvelynB2 on 03/18/2015 5:07 AM
"As others have posted, common area is property that is not deeded to an individual owner."
So if my driveway is deeded to me, the HOA can't come now and call it a common area and take over the maintenance (mowing etc and charging me for it)??
"As others have posted, common area is property that is not deeded to an individual owner."
So if my driveway is deeded to me, the HOA can't come now and call it a common area and take over the maintenance (mowing etc and charging me for it)??
That will depend on the language in your governing documents.
There are many Associations who maintain everyone's private property - as required by their governing documents.
EvelynB2 (Florida)
Posts: 17
Posts: 17
Posted:
On the Plat it states "maintenance shall be shared" but doesn't specify who shares it. We have had no HOA until now.
WE are also only 12 parcels. Don't we fall under special rules if we have fewer than 15 parcels?
WE are also only 12 parcels. Don't we fall under special rules if we have fewer than 15 parcels?
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Quote:
Posted By EvelynB2 on 03/18/2015 5:25 AM
On the Plat it states "maintenance shall be shared" but doesn't specify who shares it. We have had no HOA until now.
WE are also only 12 parcels. Don't we fall under special rules if we have fewer than 15 parcels?
On the Plat it states "maintenance shall be shared" but doesn't specify who shares it. We have had no HOA until now.
WE are also only 12 parcels. Don't we fall under special rules if we have fewer than 15 parcels?
If 12 parcels and it says maintenance shall be shared, is that not clear enough? Cost divided by 12.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
What do the CC&Rs say about maintenance?
Do the CC&Rs specify anything about the shared driveways?
Do the CC&Rs specify anything about the shared driveways?
EvelynB2 (Florida)
Posts: 17
Posts: 17
Posted:
The Restrictive Covenants say each lot owner is responsible for maintenance.
The new HOA By Laws state the HOA will maintain these driveways and collect from the parcel owners for the maintenance.
What prevails??
Again, we are only 12 parcels. I am looking at Statute 720.303
The new HOA By Laws state the HOA will maintain these driveways and collect from the parcel owners for the maintenance.
What prevails??
Again, we are only 12 parcels. I am looking at Statute 720.303
JohnB26 (South Carolina)
Posts: 1,001
Posts: 1,001
Posted:
If fee simple stand alone homes - covenants prevail
If condos or townhomes - bylaws may very well prevail
? what does your attorney say ?
If condos or townhomes - bylaws may very well prevail
? what does your attorney say ?
EvelynB2 (Florida)
Posts: 17
Posts: 17
Posted:
My attorney wants to wait and see what the elected Board comes up with.
This is a fee simple stand alone property.
So the very vague covenants prevail?? Actually, it's the Plat that says maintenance is to be shared.
This is a fee simple stand alone property.
So the very vague covenants prevail?? Actually, it's the Plat that says maintenance is to be shared.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
However, does the PLAT say that maintenance is to be shared by the individuals who have the common drive or by everyone in the Association or is it silent on who is to share in the expense?
EvelynB2 (Florida)
Posts: 17
Posts: 17
Posted:
It says: "Property owners served by shared driveways shall be jointly responsible for maintenance." And it lists which three groups of the 12 lots (4 in each group) share maintenance.
JohnB26 (South Carolina)
Posts: 1,001
Posts: 1,001
Posted:
"Property owners served by shared driveways shall be jointly responsible for maintenance."
Simple wording.
Case closed.
to spell it out: A shared driveway will be maintained by the owners who share it.
There is no issue.
JohnC46 (South Carolina)
Posts: 14,265
Posts: 14,265
Posted:
Quote:
Posted By JohnB26 on 03/18/2015 2:35 PM
"Property owners served by shared driveways shall be jointly responsible for maintenance."
Simple wording.
Case closed.
to spell it out: A shared driveway will be maintained by the owners who share it.
There is no issue.
I agree. The wording says it all.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Evelyn,
My suggestion is to contact an attorney and have them write a letter on your behalf to the group who hosted the meeting. I believe that the PLAT takes precedence over the deed restrictions. Your attorney would know for sure. It may cost you $300 or so, but it should be money well spent.
The key thing is to verify that the PLAT takes precedence. If they do not, if the Deed Restrictions (CC&Rs) are properly amended to have the Association take care of the shared drives, then that is the way it will be.
Hope this helps,
Tim
My suggestion is to contact an attorney and have them write a letter on your behalf to the group who hosted the meeting. I believe that the PLAT takes precedence over the deed restrictions. Your attorney would know for sure. It may cost you $300 or so, but it should be money well spent.
The key thing is to verify that the PLAT takes precedence. If they do not, if the Deed Restrictions (CC&Rs) are properly amended to have the Association take care of the shared drives, then that is the way it will be.
Hope this helps,
Tim
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