Adding a Property to the HOA

You may have a case. It is because this person is benefitting from this situation. The lot could still be common property which they will owe like everyone else.

The ability to adopt changes are in your documents and should require a majority vote or special meeting to pass.

This does need a lawyer to handle. Normally do not recommend a Real Estate lawyer for HOAs becuse most things are contractual laws. It is not Real Estate. However, in your case this falls more on the real eastate side of things.

It may require paperwork more than court. You all may need to approach the county or city about zoning or plot lines. This lot has to be tax assessed and registered. So it is something your locals would be interested in making sure it is incorporated correctly.

The lawyer may be needed to defend or represent the HOA against the owner whom will not be happy with the changes. They may find not being in the HOA a tax burden or other costs. They may not like being in the HOA but that means legal ways to collect dues.

Melissa,

You beat me to it, I was adding the verbiage from both our covenants and their deed. They have been paying their taxes and the county recognizes it as a legal lot in our community.

I don't think amending your covenants will be enough. I'm pretty sure you would still need the assent of the owner of lot 44. Assuming they are not willing, I don't think you'll get them into the association without a judge's ruling. This could be an expensive process. Assuming you prevail, you may or may not convince the judge to also award legal costs. Talk to an attorney to get a idea what this will probably cost, and weigh that against the annual dues. Just to toss some random numbers, lets say a lawsuit will cost $10,000 and dues are $500 per year. Even if you win, but don't get awarded legal fees, that's 20 years to recoup your investment. And of course, that's assuming you win. If you lose and the owner of lot 44 is awarded legal costs, you're out a lot of money for nothing.

I'm curious, Paul. How much are your annual dues?

From your earlier email, it seems your new board has a lot to do. Perhaps this matter needs to prioritized lower on your list?

Kerry,

They are low, we just raised them to $165 annually. Pennies compared to some, I know.

We do have provisions in our covenants about legal fees being the responsibility of the homeowner in the event we have to go that far, and of course receive a judgement in our favor.
At the current, it is debatable that this property is a homeowner that we can apply this provision to. It is a grey area with the fact they are a member of the community, but in a sense not a member of the association because of what I feel is a technicality that was overlooked years ago. I feel this should have been corrected when the lot was re-purposed as a normal lot away from a planned community clubhouse, but that is history. Looking into to seeing what we can do now to possibly get that change implemented.

Fortunately, you are correct in that we have a lot to do, but when it comes to opinions of the members, this one seems to be the one that surfaces immediately to the top of the list in what they want corrected, along with the landscaping of course (isn't that everybody's #1).

Paul

Were I on your BOD and you requested any money from the association to "fight" the issue, I would personally pay their $165.00 for the year and say back off.

Now if you care to take it on as a personal cause and at no (zero, nada, nothing) cost to the association, I would say feel free but do not involve us (the association) in any way shape or form.

Once said to someone I was right. They replied yes you were right but your were dead right and you are still fired. I learned from that.

Melissa & Tim are right. Get a legal opinion. Now this may cost you 5 years worth of those dues that your H/O's think you should be collecting, but...
I think also you'll have other issues having to do with easements, possibly laches (look it up), statutes of limitation & who knows what else. (I'm not in the legal field.)

To appease the H/Os and to let them know that you're transparent, distribute a list of the priorities your new board has come up with and your reasoning for each. The reasoning for landscaping will be a good one. But it might follow others like beef up your reserves, etc. Show that the $167 year simply is not as significant as the other times on your list.

Maybe have a Town Hall type of meeting where you can invite all H/Os to discuss the list and kind of blow off steam. (do you have anywhere to meet?)

If the streets are private, then there should be a private road agreement.
Typically the CC&Rs act as that agreement. This may be the angle the Association should look at.
Normally there are local or State statutes that require all owners along a private street to contribute to it's maintenance.

If the streets are public, then the issue is mute.

Hi Paul

1. As others have said, $165 per year may be the noisiest item on your list, but it doesn't belong anywhere near the top of your priority list. It's an inefficient use of your valuable time. Five years of fees is less than $1,000 - which can get eaten up by legal fees very quickly. Your chance of success through the legal system are questionable - which also means that your chance of recovering legal fees is negligible.

2. Does your HOA pay RE taxes on the common areas (or are they appraised at $0 by the local assessors)? If taxes are paid, this is an an additional expense that you could attempt to allocate against #44.

3. Does your HOA have architectural standards for houses? And when #44 was built, did they do anything to make #44 look like the other houses in the community? If they did, this could bolster your claim that there was an understanding that #44 would be included within the HOA. Of course, if the original owner of #44 still owns the house, this approach is not likely to get any traction.

4. You could have a lawyer send a letter to #44 stating that, unless dues are paid by date XXX, a barrier will be installed that blocks access to #44's driveway from the HOA roads. Letter would also inform #44 that they have access to county road as an alternative means of reaching the property. Get ready for the potential lawsuit (initiated by #44).

5. The alternative easement issue could go either way in a courtroom. But that takes you back to item 1 on this list. It doesn't belong anywhere near the top of your priorities. If you put it ahead of other things and you are not successful, the complainers will be coming out of the woodwork saying that you wasted HOA funds. The biggest complainers will be the Board members you just got rid of.

"I want to somehow update the covenants to reflect that they are part of the neighborhood and also liable for the dues. I've already tried the 'hat in hand' approach by seeing if they would just pay this year's dues in hopes that we could start clean with case....no luck."

Just as a matter of curiosity, how do covenants get "updated" without unanimous consent of ALL component members including the target refuseniks, their mortgagees/chargees/encumbrancers and maybe of more including everyone who may already be bound ?

Isn't the essence of a mere "covenants-platformed" community ( ie : no legislated template like a condominium registration ) that the deed from subdivider/developer to each initial purchaser and subsequently from purchaser #1 to transferees etc, must expressly and adequately pass along the assumption of criss-crossing benefits & burdens as contracted. Or have such accomplished by some form of a valid assumption documentation ?

So what then is in the chain of transfer documentation that originates and passes pay/comply/pass along such on title to their property ?

Further what legally links "reserved" to "must pay/comply/pass along" etc ? In our jurisdiction and another with similar treatment, for example a group of owners tried to turn a parcel labelled "forest" on planning document into "must never be developed" and lost because they could not meet the onus of upfront proving any covenants at all, much less a building scheme.

In another an oppressive HOA was viciously crushed by motions judge & appeal court after the HOA went after the neighbours without the slightest pay/comply/pass along in the victims' deeds and title.

Same thing happened when 4 sets of urban owners tried to illegally fabricate pay/comply/pass along to a dual frontage victim to pay for snow clearing paid.

Maybe these are not your community's situation. But what is in expressly on their chain of title to compel pay/comply/pass along such to next owners ? How could those rights be "updated" if unilaterally ?

Bob D (not in new york)

Paul

When you spend your $600 to $1,000 for a lawyer's opinion, you are likely to learn that, as long as there is reasonable alternative ingress and egress, you are probably within your rights to close off ingress and egress from your private streets.

My recommendation was that you send a lawyer's letter - which of course presumes that you have consulted with your lawyer and she advised you to move forward with this approach.

Bob

Doesn't sound unfair at all --- if if if -- the property is landlocked.

But the OP said there was access out the other side --- so not landlocked.

Time for a legal opinion on the particular situation.

The "technicality" is that you bought a home with strings attached and the other guy did not.

Just why is it that a bunch of folks bought homes in a development where a community clubhouse was promised but not delivered and, instead of directing their anger toward the developer that screwed them all over backwards, they are focused on extracting revenge from the poor sap who bought the property?

Because I have been on the board of an association where all 300 miles of our roads are on private property with easements, I have educated myself on the subject of easements.

The OP has said very little about the roads. "Dedication" is what the easement says about who may use the roads and has nothing to do with whether a public body has accepted the roads and/or agreed to maintain them. Dedications of easements are independent of an obligation to pay dues to an HOA.

If the grantor's intent was to make the roads for the exclusive use of the owners and guests, then there would be language to that effect stated on the plat for the subdivision. Even if that language was there, the owner of lot 44 has a lawful right to use the road by virtue of being the owner of a property described on the plat.

An easement may, in fact, make a road on private property public. "Public," in this, case means that anyone may travel on it; it does not mean it is owned by a public body. The road on my property, for example, is dedicated for "non-exclusive ingress and egress." (The appellate courts in my state hold that those words are sufficient notice to make the road public.) So even though I own the real estate anyone may travel on the road on my property and I have no legal means to prevent them from doing so.

The members of the HOA are not without recourse. There is a body of common law that holds that those who use an easement have a legally enforceable obligation to contribute towards the maintenance. The HOA can lawfully demand a share of payment from the owner of lot 44 and, if he refuses to pay, sue his pants off.

Larry cites "unjust enrichment" remedy from a judge, not from some vigilante blockade that courts here have hit with huge legal punishments. At one point here some of the POA Directors got it into their heads that access to common lands could be physically denied to those dissenters who may have refused to pay "return of contributions"(not me). Without prior court order here, barring access to common lands is a legislative power not even legislated to bona fide condominiums. Totally whacko. Cooler heads have prevailed, but an eye-opener for me about incorrigible big stupid by well-educated folks.

I'm in a community that a new developer built and expanded round my community. their in a HOA we are not; even though we have a HOA deed restriction that was done all wrong and is unenforceable. that HOA now has to pay for our community street repairs lighting and common lots insurance and taxes on said common area's. They have to drive through our community to get to theirs which is even the same development in name only not the HOA's names.

basically sounds' like the person has real series HOA enforcement issues and liability if disgruntled HOA member. If say he/she goes the route as this is not a LOT that's pays for the HOA dues it's a lot the HOA has to pay for maintenance, Property Tax & Levy's and Insurance on the property and points to the legal language that's was enforced when he/she bought the property. Might have to get stuck with one happy disgruntled HOA member that makes demands like building say a pool or a family community center on the HOA common property on his lot that's on his private land now. Could grab lawyer but they might as well look at the cost are they willing to get the development involved in lengthy court fight for not doing convents and deed restrictions right the first time? and who wins the lawyers and where are the lawyers going to get paid from??? all the HOA members personal assets, esp if the person demands equal rep from the HOA legal cost due to it's their problem they didn't fix before the issue came up.

will be funny situation if the legal wordings at the time of sale to the lot owner that the lot is a common area and the HOA has to pay all it's fee's and some; some people might even demand the HOA pay off the mortgage even. 40 some lots only might s well write it off as a loss.

Also another problem is that you might and probably will have to rewrite the survey boundary's of the entire plats of the community, that could cost in the ten's of thousands of dollars itself Just to amend that one lot legal description from removing common area. we have less then 100 houses will cost that HOA 40k alone in rewriting plats even if we join them and detailed survey of each lot again just for a few dozen houses. that's why when a HOA accepts a Community property and like to give it to say a school a church or just transfer it they don't bother with it due to the huge costs to do it, it's not like say here have 5 acre's and it's done, nope the entire community plot's surveys has to be redone and re recorded.

might be more the cost then it's worth.

whoa.... over 3 acres on a reserve plat of land? if that reserve area plat incorporated a few lots of different sizes. and the HOA only sliced and diced one plat of land and did not re-plat the original to reflect that owners new lot zoned for a house which raises serious tax issues for the HOA, that land owner may not in your association or at very least not required to pay assessment's due to it's still a common area where the convents surely states that all common area's will be maintained by the HOA.. another example of being in an area of HOA but not in a HOA. that's one of the agreements with city's for common area's of HOA's the property tax's for them are lowered on those plats.

Larry's comment above hits squarely on the head the major : that through whatever legal or illegal process, the 43 lot purchasers have been deprived of their common amenity.

If their promise-making developer/corporate shell has gone through a bankruptcy process as to that property, the trustee's deed may ( or may not ) have cleansed the obligations permanently.

Or instead if the purchaser's jurisdiction rejects claims to "affirmative obligations" without express contracting by the purchaser ( eg " as transferee I will pay your association fees and obey its dictates and pass along such to the next owner " ), then the orphaned lot owner may be scott-free.

Same outcome in this jurisdiction after a developer's disclosured comittments to erect a multi-milion dollar rec complex, were killed by bankruptcy; bankruptcy trustee ignored such. Claimant multiple condo corporations ( the defunct corporate shell's customers ) next lost VERY big time against the next purchaser - not so bound under this jurisdictions' law. These outcomes vary by legislation and judicial treatment of the "affirmative obligation on transferee's title" issue .

If the 'orphaned' lot is free of the commitments claimed, there is nothing to grand-father and such may risk title slander.

Yet replatting the lots even to correct a HOA self inflicted problem is the cost expect to pay 20 to 40K just to get that 1 lot owner into a HOA by replating the lots to correct the recorded deeds. 43 houses that's about 1K each lot owner has to fork up to get that 1 lot. or the least cost effective way is too ignore the problem but face legal issues later if that's a disgruntled lot owner. or amend the bylaws and deed restrictions to exclude that 1 lot. either way a lawyer needs involved to correct any defects or it's just sitting on a ticking legal time bomb issue later down the road.

this is like that ice age cartoon squirrel situation. bound and determined no matter what happens to get that one nut. almost as bad as trying to take a golden buckeye entitlement card from an elderly lady, she'll fight tooth and nail to hold onto it.

let go Luke let go, run Luke run.

I had not cited "unjust enrichment" but did go back to my copy of Freeman v. Sorchych to see if that issue had come up. Surprisingly, it did. Just as surprisingly, the court denied relief under a claim of unjust enrichment.

The court said there must be five elements present to satisfy a claim for unjust enrichment: 1) enrichment of one party; 2) impoverishment of the other party; 3) a link between the enrichment and impoverishment; 4) no justification for the enrichment and impoverishment; and 5) no other remedy at law.

The court determined that the plaintiffs spent their money to improve the common road for their own benefit as well as for the defendant. Since they benefited from the expenditure, the plaintiffs were not impoverished. More importantly, the court held that there is a remedy at law, namely contribution.

The court denied the claim of unjust enrichment but upheld the claim of contribution. Yes, it is splitting hairs but that is what courts do.

The case, Freeman v. Sorchych, may be found at http://caselaw.findlaw.com/az-court-of-appeals/1553750.html

True back a bear into a corner after poking it with threats might just cause that HOA one huge hefty legal bill and still get the same result of exempt lot in their HOA community. OP think stated they WISHED they changed it before they sold the lot to the buyer. there's an old saying wish in one hand and a Non HOA member craps in the other and see's which one fills up first.

Most HOA's would of gotten good legal advice as Let it go or just ask the lot owner to join the community. It's just 1 Lot....

I lived in a community that was completely encircled by thousands of houses in HOA's, best that they could do was ask for our community to voluntary sign that our neighborhood would be placed into their HOA when our houses sold since their hostile attempt to force us into theirs because we used their roads to get into our community.. You can lead a horse to water but you can't force it to voluntary drink the water.

Thanks Bob
The following quotes from the Point Albino are interesting:

"It has always been a feature of any search of title conducted by competent legal professionals to make
sure that the lands are reachable either through publicly owned lands or enforceable rights of
way. The Association is not seeking a claim against the defendant's lands in this action. They are
simply seeking a remedy whereby he will be made to pay an equitable share of the costs incurred
for the benefit of all landowners. Section 112 of the Registry Act has no application in the instant
case. The Association would have every right to bar the defendant from using the Association
lands if they so chose. Without using the Association lands, the defendant cannot reach his lot
and therefore he cannot enjoy the amenities of his cottage."

"It seems clear to me that the defendant has
benefitted substantially from the services provided by the Association. The plaintiffs have paid
the taxes on the lands in question, have maintained the roads, thereby giving him access to his
lands, they have ploughed the snow in the winter, they have provided insurance coverage for the
common lands and they have provided the services of security personnel. How a land owner,
occupying a piece of landlocked property can deny receiving a direct benefit from the
Association's work on private roads used to gain access to these lands is beyond me. It is also
self-evident that by failing to share in the costs of the maintenance, he has deprived the
Association of funds which it should have been entitled to count on."

"If Mr. Lee takes exception with the way the
Association runs its business, he has every right to join the Association and make his feelings
known during their annual meeting. However, it is not up to him to be the final arbiter of how
much he personally should pay as representing his fair share of the costs incurred by the
Association for the benefit of all co-owners."

In the first paragraph, the Judge puts the burden on the Buyer of the parcel, and says that the HOA would be within its rights to block access even if that would landlock the parcel.

In the second paragraph, the Judge mentions items of benefit to the landowner that go beyond just the roads - security, insurance. At what point, would he have to contribute to maintenance of all the common elements?

In the third paragraph, the Judge says that the landowner had the choice to be part of the HOA and it is not up to him to be the final arbiter of what his personal obligation is. While HOA membership may be voluntary, the obligation to pay is not.

All very interesting.

Adding more units ( maybe some time after legal creation of a shared ownership community ) may be theoretically & legally possible with some modern CONDOMINIUM models.

One condo model here effective May 4/5 2001 could be used for "come & join the condominium party later". Unlike HOAs/POAs strung together with criss-cross promises in chains started up by a HOA developer, this one is a freehold template legislated to have instant governance authority backed by full force of law. It is lender-friendly and management friendly with super-lien powers in priority over non-government encumbrancers except against priorly registered undischarged mortgages/charges.

It has been used already as the "enforcer" built into hybrid communities constructed with many otherwise HOA legal characteristics, presumably less terrifying to seniors than conventional condo until horror stories are heard.

The model allows a developer still in control of its appointed 'First Board', 'sweetheart Board' or other terms unfit to print, to unilaterally increase the number of what are called not conventional 'condo units', but POTLs or Parcels of Tied Land. A legislated formula allows such later 'join the party' to occur within Registry jurisdictions that could be a hundred miles across.

What does this open up outside obvious valuable commercial usages like shopping centres & ICI service areas, aviation communities etc ?

Imagine the surprise when lake associations and environmental discover backlot projects bring waterfront access of right, to potentially hundreds of such POTLs. Open ended subdivision approvals ( on lakes ) using this model have actually merrily occurred at least twice within our own county.

One elsewhere shocked the taxpayers when it was discovered that 2900 units would be arriving on a compact prime lakefront lakefront with 12 to 35 Million dollars for the general taxpayers to pay for sewer/water treatment. Local diligence ? Local planners pleaded and showed ignorance. The President of the same lake's association was hired to sell units.

The model - new here - is here labelled part 10 CECC / "Common Elements Condominium Corporation". Models in other jurisdictions may or may not have such proliferative powers. If it shows up at your lake or environmentally sensitive area, watch out.