Forming HOA in neighborhood without a HOA

A group of homeowners want to form HOA/LLC to cover the common roadway and water distribution system. A slightly smaller group does not want the HOA/LLC. Given that the water system has been in use since 1995 and the roadways since 1985 can the homeowners forming the HOA/LLC force the homeowners who do not join to pay fees, control allocation of water from the well and decide how to maintain the common roadway and then to bill the non members in Santa Fe, NM

Highly doubtful. HOAs are based on deed restrictions. You cant restrict a deed you do not own.

I would think the government would need to enforce eminent domain for something like this. A group of homes cannot simply tell another group of homes to add deed restrictions to their deeds because its something they want to do.

Joe,

A group of residents in an Arizona community tried this several years ago and lost big time in the courts. You cannot impose deed restrictions on unwilling owners.

Those who do wish to form an association may do so. There is some common law that says that those who use common elements, such as road easements, may be legally compelled to pay their fair share of the expenses. A group of homeowners who form a voluntary HOA would have significant clout to get the non-members to pay their share.

Property owners who do not join the association retain their rights to have a say in how and when work will be done, so the mere fact that they are not members does not empower the association to dictate terms to them. The main advantage to having an association would be that those who are members would speak with one voice.

Bottom line is that you cannot compel property owners to join an association but you can compel them to pay a reasonable share of common expenses. You should not proceed with this idea without obtaining advice from a real estate attorney.

In much of the southwest, drilling a new well is insanely expensive so sharing a well makes sense. I know of one owner in my area who spent $40,000 only to have the pump jam inside the well casing, making it useless.