Common Area Water Overflow Damage to Private Property

Started by MargueriteV • 7 replies • 1725 views

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MargueriteV (Tennessee)
Posts: 7

Posted:

There is a water overflow problem from the common's area adjoining 3 private properties in our subdivision which has caused over $4500.00 in damages. There are roots of trees coming out of the ground and erosion to our property. I discussed this problem with the HOA Mgt firm, who in turn discussed with the board of directors. I was told they would meet and let me know their decision. I still have not heard after 2 request. I was told by the HOA Managemet Company that they didn't have to fix my property or my neighbors. He said they were only responsible for the commons area. I advised him that this issue had been brought to their attention numerous times and due to the lack of responsibility of the HOA in correcting the overflow problem these damages had occcurred.

The landscaping company and engineer who looked at our properties advised us that a swell of 325 ft would have to be dug to drain the overflow before they could continue with the project and correct our issues. Our properties will have to be graded off due to the red clay build up, new topsoil would have to be brought in and grass sewn to prevent further erosion to our properties.

It is my belief that it is the HOA's responsibility to pay for these damages due to their lack of responsibility. Do any of you have any suggestions?

RayC4 (Virginia)
Posts: 173

Posted:

This sounds a bit complex in terms of 'the facts.' It's not clear to me whether the overflow was an 'event' in time, or a slow degradation of your property. Whatever the case, it seems to me that you are in a strong position since you had at least put the HOA 'on-notice' about the problem.

I assume that the HOA carries liability insurance (or at least they should and this should be stipulated in your by-laws). Have the property owners asked the HOA to at least contact the insurance company for an assessment of the situation? If not, that's where I would start.

Beyond that, you may have to engage an attorney in order to get someone's attention at the HOA. A letter from an attorney can have a sobering effect on HOA Boards who don't want to get into expensive legal fights over the relatively nominal costs of repair, especially since the repairs should prevent the potential for further damage in the future.

There are some on this forum who will say "never" sue your HOA, since you're in effect suing yourself (i.e. you will be assessed legal fees of the HOA). But sometimes you have to stand on principle, and imo it sound like you were wronged here.

MargueriteV (Tennessee)
Posts: 7

Posted:

Thank You for your response Ray. Several years ago we did obtain an attorney due to the wrong doings of a previous BOD. The present BOD is going on a third term and time for them to be voted off in our next election. Some of us did not receive notice of our annual meeting or the opportunity to vote for new officers. A lot of the home owners are disgusted and have just given up due to nothing being done. I did request a financial report which looks very questionable due to over $9,000.00 being paid out for hail damage repairs. I did question why our insurance did not pay for the damages and that question, along with others, has still not been answered. There are 85 homes in our HOA and the report doesn't add up accordingly. Just for example: Our association dues are $70.00 but financial report has budgeted an income of $70,560.00 for assessment fees and $1200.00 for late fees for a total of $71,760.00. I am no CPA, but; I really don't understand how they came up with this assessment income total.

The report does not show how many leins are on properties, amounts on assessment fees that are owed, etc. and we cannot get any answers when we ask for them. I think it is time to put the management firm to the test and demand answers. I know I can get the backing of homeowners and start a petition demanding answers. This company feels that they are the owners and do not have to answer to the homeowners. After all, we are the association who pays him.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MargueriteV on 11/01/2013 5:32 PM

There are 85 homes in our HOA and the report doesn't add up accordingly. Just for example: Our association dues are $70.00 but financial report has budgeted an income of $70,560.00 for assessment fees and $1200.00 for late fees for a total of $71,760.00. I am no CPA, but; I really don't understand how they came up with this assessment income total.

If 84 homes (instead of 85) pay $70 per month, then their figures are correct. 84 homes times $70 per month times 12 months per year equals an annual income of $70,560. The question is what happened to the assessments paid by that 85th home?

Your board may have budgeted based on the expectation that at least one owner will default. Or there may be a property still owned by the developer that is exempt from assessments. You need to find out why they are basing income on only 84 out of 85 homes.

RayC4 (Virginia)
Posts: 173

Posted:

Quote:

Posted By MargueriteV on 11/01/2013 5:32 PM
I know I can get the backing of homeowners and start a petition demanding answers.

If you have their backing and can mobilize the homeowners, I would not waste time and energy on petitions. Call a special meeting (or wait for the annual meeting), recall the BOD, and fire the management company. These people are not going to respond to any form of pleadings or petitions. Otherwise you will only continue to be frustrated.

MargueriteV (Tennessee)
Posts: 7

Posted:

I have come to that conclusion too Ray. Today, I received an e-mail concerning the water drainage issue. I was told that the BOD met and was contacting the Landscaping Company to break down the cost for each homeowner involved. They agreed to pay for the commons area but not our property. Since we pay dues, we are not only having to pay for our property, but the commons area also. A double whammy for the three of us. I will be talking to my attorney concerning this matter. I feel that the HOA can destroy my property and not be responsible. What else next will they be doing that I will have to pay for out of my pocket?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Marguerite,

When you go to your attorney be sure to bring copies of your governing documents and any other communications between you and the Board over this issue.

Typically, with storm damage, each parties insurance takes care of their own property. This may be why the Board said that they will take care of the common area and you need to take care of your property.

The normal exception to this typical process is when there was advance notice of the issue and the other party failed to act to address it (i.e. the damage could have been prevented). However, if there is no proof that the other party knew about the issue prior to the damage occurring it becomes more difficult to prove that they were negligent.

Once your attorney reviews the documentation you provide and applicable statutes, they can advise you on your options.

Hope this helps,

Tim

MargueriteV (Tennessee)
Posts: 7

Posted:

Thank You Tim. I'm not sure who has the documentation because two of the neighbors are new and have just purchased their homes in the last few months. The past several presidents have moved from the subdivision, however, their are several witnesses to the fact of the notices to the board. The erosion is to the point of being what we call gullies all along the common areas which through the years have gotten worse. I believe pictures of the areas, which are in public view, will obviously show neglect of the upkeep of the common area. As I said previously, large tree roots are sticking up out of the ground and portions of our yards and the common area cannot be mowed because of the water damage.

Since two of my neighbors are new homeowners and I have changed insurance companies, our insurance companies will not pay for the damage since it has been here for quite sometime. When I first started getting water erosion, I thought it was from my next door neighbor until we followed the trail of water and saw where it was coming from. I left here in 2005 and returned in March of this year to find all of the erosion and nothing had been done. I have stayed on their backs until they finally looked at it in July and when I threatened with an attorney to get something done they met on the issue on October 30th.

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