Sidewalk Maintenance

We are in an HOA where we are responsible for everything that is on our property. The HOA is responsible for HOA property. We do not own the land or the sidewalk upon which it is constructed. No one seems to know "who owns the sidewalk". My assumption is it is the developer owned HOA but it could have been deeded along with the streets. At the the time that the sidewalks were laid they were not done correctly. The streets are about to be turned over to the town. The town just passed an ordinance stating that the homeowner is responsible for repair of the sidewalks. However, the town required the developer to make all necessary repairs to the curbs that the town will be required to maintain. There is also between the the sidewalk and the curb a green belt with a tree. The HOA most definitely owns that piece of land and is required to maintain it according to our covenants but sent an eblast rather than formally amending the covenants even when I pointed out that the covenants stipulate that they are required to formally amend the documents. The developer is in control of the board and as such feel they can do whatever they like. Unfortunately Delaware does not have HOA laws and it falls back to the CC&Rs

I was wondering if anyone else lives in an HOA where you do not own the sidewalks or the land beneath them but are being forced to maintain them because your property abuts the sidewalk.

Thanks for any information you can offer on this topic.

Tim,

Thanks for your suggestions. I am not speaking of snow removal but actually repairing the sidewalk. I looked at my survey and deed -- we do not own the land the sidewalk it on nor the sidewalk. We just abut to it. My guess but only a guess is that the HOA was deeded the land or it is still owned by the developer or it was deeded to the town. No one seems to know -- not the HOA or the town -- strange as that may sound -- but one must remember we are speaking of Delaware and it is not like any other state I have ever lived in! I come from NY which is soooo different. The HOA only speaks to snow removal.

The town just passed an ordinance that the homeowners are to maintain (repair) the sidewalks. The sidewalks were not installed correctly -- they have spauling in just 8 short years. The irony is that the town has mandated the developer to fix all the curbs since the town maintains those and the street which is being paved and then inspected by the town because they will also be responsible for that maintenance.

However, when I originally brought up the disintegrating sidewalk issue I was told by 3 different town managers (I notified them 6 months after we moved in) that when the streets where turned over the sidewalks would be repaired before the turnover. So for 8 years I have been patient. Then instead of doing as they said they passed this ordinance.

I wonder just how legal that is -- dictating that the homeowner be responsible for a structure on property they do not own. I have to go to the county and look at the the paperwork on the development and who owns what. I just know we do not own that land according to the deed and the survey. My guess is that it is owned by the HOA because they own the greenbelt which is the strip of grass and the tree between the curb and the sidewalk. The HOA is suppose to maintain it but after a couple of years sent out an e-blast and told the homeowners that they had to cut the grass in that area and replace the tree if it dies. They did not formally amend the documents as required by the CC&Rs either.

The developer controlled BOD does not seem to care that they are not following the legally binding contract.

An additional issue is that I am one of the very very few in the community that even cares.

The other interesting thing is that this new ordinance says nothing as to liability issues.

Delaware is not a home rule state so there might be state law about liability.

The DE code is hard to scan for answers and as you can imagine is very lengthy.

I am just wondering if I find out the HOA owns the sidewalk can the homeowner be mandated to assume responsibility the repairs by the town.

I am hoping someone reading this post might have run into a similar situation.

Hi Glen

The HOA is the developer -- the entire BOD are employees of the developer.

Oh you brought up a point that I was not aware of -- can you tell me what are performance bonds? How would I find out if they were issued and how could I stop them?

The town just issued this ordinance. I have been desperately trying to find out if the ordinance is even legal.

I have not found anything in State code regarding sidewalks. Delaware is not a home rule state.

Here in NY the town fixes the sidewalks at their own expense. I would think that the owner of the sidewalk would be responsible.

the only think I know for sure is that our property line ends before the sidewalk.

I am making a guess that the land and hence the sidewalk has been deeded to the HOA. Can a town mandate a homeowner to maintain a sidewalk which actually may belong to the HOA?

I spoke to a board member and he said to me "do you realize how many sidewalks there are in this community and the expense". Now here is the irony. The BOD is the developer and it is the developer who put in the faulty sidewalks to begin with. The HOA is not going to make the developer fix the sidewalks. The town is making the developer fix all the curbs so the town does not have the expense -- there have been a lot and I mean a lot of repairs.

In some instances the developer put in the wrong type of tree and within 8 years the roots have lifted the sidewalks.
The biggest issue is spauling because the cements was improperly poured and cured.

I am trying to find out is it even legal to force a homeowner to maintain property that they do not own -- does anyone out there know?

If the HOA owns the land and the sidewalk and they do not want to maintain it then I would believe they would have to amend the CC&Rs properly to now have the abutting owner maintain it. That would be legal.

Of course we are in an HOA community and the rest of town is not. But in the past when they have passed other ordinances they did it in such a way that they had two sets of rules one for planned communities and one for other
areas of time. Those were P&Z issues.

A big concern I have is this is a very small town a little over 2,000 people and the commissioners of the town do not even know Roberts Rules of Order. They are just not particularly sophisticated. Already I found a charter change that was quite illegal and I took it all the way up to the state legislature and it was changed!!!

I just cannot seem to find anything concrete on who is responsible for sidewalks when they are not on one's property. Can a town force someone to fix another owner's property? That is the big outstanding question.

Oh I can assure you that they are also breaking ADA rules on sidewalks throughout the town and community. No one has challenged that yet. I just happened to come upon all of that during my research on sidewalks.

EITHER:

a) the HOA maintains the sidewalks ~ you, as a member, will pay the necessary assessment(s) to pay for the repairs

OR

b) the individual owner pays for 'his' sidewalk ~ the owner will pay for the repairs

REMEMBER

either way, the member(s) pay for the repairs

IMO: cheaper for the HOA to get it done 'en masse'