HOA does not own common property

Started by DD4 • 4 replies • 1574 views

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DD4 (Tennessee)
Posts: 5

Posted:

Hi,
Our HOA does not own any common property or amenities. The plat does not show any common areas.
The developer owns the two lots at the front entrance and pays the taxes on them. He makes us pay for the maintenance(mowing, mulching etc.). We received an attorney's advice and he said we are not responsible for mowing property he owns and is not deeded to the HOA.
They are ignoring the attorney's letter that we received.
The developer's friends hired their own attorney who was a conflict of interest(the firm represented some of the members in their personal lives. Their attorney bowed out as one of the represented members called them and they will no longer represent our HOA.
But the president is following the conflict of interest attorney's advice! In speaking to other attorney's about this, they said if two attorney's differ in their opinion, it must go to court.

The president will not take it to court--he is on the side of the developer. We are being used. An attorney wants $10,000 to help us. What happens if it goes to small claims court? If we own no property, can they mandate that we pay for the maintenance of another person's property?
Can small claims court make it voluntary as it should be?

TimB4 (Tennessee)
Posts: 21,061

Posted:

DD,

Is the Association under membership control or is it controlled by the developer?

TimB4 (Tennessee)
Posts: 21,061

Posted:

DD,

I saw on your previous thread that the developer is still in control of the Association.

Yep, when two parties to an argument can't agree or compromise, the options are limited. Either live with it or seek out a third party to settle the dispute. In this case the third party would be the courts.

Small claims court might not be an option as each court has specific limits on what they may do. You will need to consult with the courts directly or seek the advice of an attorney to see if small claims is an option. Regardless of what court you go to, the chances of winning are typically always 50/50.

RayC4 (Virginia)
Posts: 173

Posted:

I assume the HOA pays regular assessments for expenses in running the association. Where is it written (should be the covenants) what these assessments are to be used for specifically? From your post, maintenance of common space is not going to be cited because common space doesn't exist.

Has the situation been discussed at an open meeting? What do the other BOD members say?

It sounds to me that there is no justification for the HOA paying -- particularly if it's still under Declarant control. Find an attorney who agrees, split the fees with the other members if possible, and ask for a 'declaratory judgment' re the responsibilities for funding this line item. Ask for back sums paid erroneously plus your attorney fees, etc.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Perhaps this will shed more light on the issue. It's from DD's previous thread on the topic:

Quote:

Posted By DD4 on 10/04/2011 11:07 AM

Now he [the declarant] has sent a proposal to our president(elected by the members)
for us to mow all of his vacant lots. There is absolutely no common property conveyed to the HOA at all but we are paying for the sign, lights and insurance for the sign at our front entrance. All of this is in the developer's name.

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