Need Your Advice and Help in Virginia!!!

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MichaelS55 (Maryland)
Posts: 44

Posted:

I live is a small established (1985) 12 home community with a self-governed HOA and a 5 member elected Board of Directors (yes we have a small pool to choose from), located in Fredericksburg, VA and on the Potomac River. The waterfront community was slowly built up over the years with the last home completed in 2006.

10 of the homes are connected to an outdated community conventional septic system that was sized, constructed, and licensed to operate in the mid-1980s for only a 30 bedroom capacity (or 3 bedrooms per Lot). Nine of the homes have septic tanks while one of the homes feeds solid waste directly into our septic system for the past 27 years!!

This community septic system consists of effluent from each of the 12 Lots feeding into a gravity fed common main pipe down to a pumping station at the end of our street. The station consisting of 2 alternating pumps the effluent about a mile away to 3000 gallon concrete holding tanks which then uses 6 concrete distribution boxes to empty the effluent into a 2.5 acre drainfield with a 2.5 acre reserve which may/may not accommodate 30 bedrooms using 2014 standards/codes.

Our Deed of Dedication includes covenants specifically mandated by the Virginia Department of Health as well as the local City Council to:

- limit each Lot/Home to 3 bedrooms

- for the HOA to provide proper operation/maintenance of the septic system

- certain covenants within the Deed of Dedication regarding the community septic system can only be changed by approval of the County Supervisors.

- the City will take over the operation/maintenance of the community septic system in the event that the HOA cannot, and will in turn charge the homeowners/hoa.

Over the years 4 of the Lots were actually approved by the existing BoD's and HOA to build 4 bedroom homes in direct violation of our Deed of Dedication and City mandate restricting each Lot to only 3 bedrooms.

These 4-bedrrom homes were also later bought and sold as 4-bedroom properties, again in direct violation of our Deed of Dedication and City mandates restricting each home to 3, and the new owners given clean Disclosures at the time of purchase. The very day the new owners closed on their homes they were in violation of our Deed of Dedication, then when they complained about something or it came time for the annual voting they were then quietly reminded of the 3 bedroom limitation!

Past and current Boards have been controlled and dominated by individuals whose homes had the 4 bedrooms, as well as the homeowner who does not have a septic tank thereby feeding solid waste directly into our community septic system.

Over the many years (and currently) the various Board of Directors through a combination of true ignorance, feigned malfeasance, conflicts of interest and self-interests have failed to properly operate and maintain (O&M) the community's septic system which is now in a state of mechanical disrepair, and to name just a few:

- backup pump failing for 30+ days,
- steel platform housing the electrical and switching components above the pumps about to cave in due to rust through lack of maintenance,
- concrete distribution boxes never in 30 years been inspected, cleaned/re-timed,
- a looming failing drainfield that will need replacing,
- not addressing the solid waste entering into our septic system.
- doing a 5000+sf land-swap between a Lot and our HOA Reserve Drainfield which resulted in the Lot owner (who was a Board member and 4 bedroom homeowner) receiving optimal property for his purposes with the HOA receiving sub-optimal property in return that may not be usable as a drain field
- no backup electrical generator for the pump station when we lose electricity
- not finding reliable and professional septic system maintenance companies because the reputable ones wont tell the Board what the Board wants to hear

These failures and lack of proper O&M have been identified and documented over the years and in particularly in July 2014 written report by a well known and respected local Septic and Soil Engineering firm which prepared and provided various options and associated costs.

The Study was funded by a Lot owner because the Board of Directors would not fund the Study even though a professional evaluation of our septic system was never performed during its entire existence.

The septic study when presented to the BoD and small community and at best was completely ignored and at worst they began to demonize the Lot owner who funded the Study. Started a private investigation into him and his family with threats being made.

In November 2014 at the HOA's Annual Meeting the Board of Directors was finally forced to acknowledge in writing as part of the minutes that it is unable to have fixed or repaired a critical component of our Pumping Station whose failure would entail a complete shut down and loss of septic capabilities for the 10 homes. And to fix/repair this component would probably entail a complete replacement of the entire pump station including the pumps.

However this replacement would also require a new Septic Permit and the local Department of Health has indicated that in this event the HOA will have to meet existing 2014 septic codes which would result in an expenditure exceeding $100,000.

The study performed by the Engineering firm recommended that at this juncture in the community's septic system and in light of current technology the most effective option would be for each Lot owner to get their own septic system (some could perc for a conventional system while others located on the river would need advanced treatment systems).

The BoD has stated that they intend to do nothing but throw money at the problem and continue to operate the community system (mostly ego driven) at all costs, and no matter the cost! Even though financially it would be less expensive for each of the 10 Lots to get their own septic systems!

I presented everything to our BoD and suggested that they enter into discussions with the homeowners who want to disconnect from the community system and come up with a mutually agreeable solution. Barring a one-on-one discussion that we use a Mediator to help us resolve the issues.

At this point in time the BoD has rejected everything, and just wants to continue throwing money at this antiquated system.

As such I think the only way to get relief is to hire professional legal counsel to force the BoD/HOA into some sanity.

Can anyone recommend a homeowner friendly HOA/VPOA knowledgeable Attorney or Practice in the Fredericksburg/Northern VA area who is not biased with HOA Boards to help us?

Thanks,

Mike

TimB4 (Tennessee)
Posts: 21,061

Posted:

Mike,

Welcome to the forum. I am not an attorney and do not work in the legal profession. Some of what you are looking at will deal with legalities of contract law. Therefore, you may want to consult a local attorney. That being said, this is my opinion on the issue (for what it's worth):

Keep in mind that until the CC&Rs are amended, the Association has a contractual responsibility to properly maintain the community wide system.

If the CC&Rs were changed, there would be the expense of shutting down the existing system. Additionally, the cost of building individual systems might have to be born by the Association as well (since it's a change from the existing and those who would need to build a system might have a claim for damages due to contract being changed). That would certainly be a question to ask the attorney.

Therefore, you may want to do a full cost analysis which includes shutting down the existing system as well as building individual septic systems.

Hopefully you have had an Association that has properly funded the reserves. However, my impression from your posting is that there isn't sufficient reserves to pay for the proper upkeep, maintenance and replacement of the system. If my impression is correct, I suspect that a special assessment has been done or is being talked about.

With such a small community, it may be hard (if not impossible) to gather enough support to change the board to members who would take the steps you desire (which would be to amend the CC&Rs to remove the required septic service, build new septic systems on lots that don't have them and decommission the existing system). Personally, from what you posted, I think it's closer to the impossible range. If this is the case, you may want to consider moving or speak to an attorney who may be able to provide you with legal options to force the changes you desire.

If you can't gather support to change the board, don't want to move and if the legal options are too few or too expensive, you may want to consider serving on the Board to ensure that the operation and maintenance of the existing system is actually done and that reserves are fully funded so this issue doesn't occur in the future.

I know this isn't what you really wanted to hear. Hope it helps.

Tim

TimB4 (Tennessee)
Posts: 21,061

Posted:

Oh, as for attorneys, look up legal cases that dealt with HOAs where the member won. Then contact those attorneys. That is where I would start looking.

Some cases that may be of interest include:

Sarnir R. Farran, et al. v. Olde Belhaven Towne Owners Association

Zinone vs Lee’s Crossing Homeowners Association

Fairfax County Redevelopment and Housing Authority v. Shadowood Condominium Association, et al.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

from a retired 'big time' plumber (myself) and Director:

you are actually between a rock and a hard place

you are looking at MAJOR expenses

the 'previous' BODs are guilty of both non and mal feaseance (neither of which would be covered by any D&O insurance)

imo:

at this point in time wait for the 'county' to take over and institute a 'special tax district'

they can do the necessary work a lot cheaper

they will 'waste' about 6-8%

a private vendor will have a gross profit margin of 15-20%

the work itself will, eventually, HAVE to be performed

the only issue is: how to fund same

county: probably over a 15 year period

private: special assessment and/or 7 year bank loan

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MichaelS55 on 01/05/2015 9:28 AM
Over the years 4 of the Lots were actually approved by the existing BoD's and HOA to build 4 bedroom homes in direct violation of our Deed of Dedication and City mandate restricting each Lot to only 3 bedrooms.

These 4-bedrrom homes were also later bought and sold as 4-bedroom properties, again in direct violation of our Deed of Dedication and City mandates restricting each home to 3, and the new owners given clean Disclosures at the time of purchase. The very day the new owners closed on their homes they were in violation of our Deed of Dedication, then when they complained about something or it came time for the annual voting they were then quietly reminded of the 3 bedroom limitation!

Wow. Amazing how stupid a BOD can be. They knew that a 4 bedroom house was being built but issued clean disclosures anyway. There is a potential lawsuit looming somewhere as soon as anyone starts to work out who is going to bear the $100k expenditure.

Sikubali jukumu. Read all posts at your own risk.

RayC4 (Virginia)
Posts: 173

Posted:

Quote:

Posted By JohnB26 on 01/05/2015 10:38 AM
at this point in time wait for the 'county' to take over and institute a 'special tax district'

JohnB, what if the County doesn't want any part of this?

MarkM31 (Washington)
Posts: 556

Posted:

If the county's system has the capacity and is accessible, they probably must take a connection from an otherwise failing system.

But it's your dime

MichaelS55 (Maryland)
Posts: 44

Posted:

First, I want to thank you all for your recommendations and insights - most helpful.

Yes, I have been trying to find court cases involving HOA's where the homeowner was successful in their suits.

Yes, they are contractually obligated through our Deed of Dedication to properly operate and maintain the septic system. And they broke that contract.

Here in our small community each additional bedroom (beyond the 3 allowable) added about $100K-$125K to their properties. The appraisers and banks provided loans to them based upon 4 bedroom properties, not 3, and could possibly call in their loans.

Question 1: If the HOA sues me the homeowner they get to pick/choose their attorney since they are footing the bill. But what if I bring suit against the HOA including the Board/Officers is it the insurance company who then gets involved and chooses which attorney or firm to represent the HOA? The reason I am asking is that I believe if an insurance company would see the facts of the case they would prefer to settle quickly and quietly at a fraction of the real liability that the renegade Directors put themselves in. If the HOA chooses the attorney and pays the fees then it will be a long fight as some on the Board have very deep pockets and have already told some of the lesser financially able homeowners that they would foot the bill in defending the HOA/Board. I have been very very careful in not doing anything that the HOA could come after me for.

The County did not want this small subdivision developed in the first place back in the mid 1980s because of the septic issues and our being a waterfront community located right on the Potomac. So the County Board of Supervisors actually put language into our Deed of Dedication specifically stating the 3-bedroom maximum rule, AND that the HOA was supposed to properly maintain and operate the septic system as it was NOT the county's responsibility to do so, AND that in the event the HOA could not properly O&M the septic system that the County would and then charge back the HOA for the costs of doing so, AND to ensure that the HOA could not change the rules by homeowner vote that ANY changes to our Deed of Dedication needed to be approved by the County Board of Supervisors.

The local County/State Department of Health is well aware of the "issues" and various violations in our small community and are just waiting in the wings for the HOA having to submit an application for a permit say to do a major repair/replacement such as our antiquated pumps and then they were going to hit the HOA with the "must conform to 2014 septic code" which would result in a domino affect costing the HOA $100k plus. The past BoD's thought they were smart and acting in a greed self serving vacuum, but they were not. In fact the county/state were waiting and then hit the HOA with a violation by allowing 4 of the homes to be built with 4 bedrooms vs. the 3 mandated by the County and thereby forcing the HOA to use 2014 septic codes!! I just found this out while going through the process of getting the Septic Study done.

What I did not put into my first post was that there is an adjacent piece of property to our 5+ acre drainfield which is owned by one of the homeowners and past Directors. He and some others were looking to get the HOA to purchase about 4 acres of this property to be used as a drain field in conjunction with our reserve field. They thought they could install a "Y" pipe with one leg supporting the 30 bedroom field while the other leg would support those homeowners who wanted a 4th or 5th bedroom and have this done using "grandfather 1987 septic code!!!! In fact one of the Directors actually traded his boat slip for some equity in that adjacent property they were looking to sell to the HOA! Through the Septic Study it was found that any bedroom upgrade (from 3 to 4) would automatically trigger using 2014 code.

I also found out that the piece of 4 acre property that they were going to sell to the HOA for use as a drainfield is not percable or usable as a drainfield because of the high clay content and it is located on washed out slopes forming into a valley with drainage directly into the Potomac River.

Since I have brought this to their attention last year a few of the Directors have taken it upon themselves to conduct an exhaustive investigation into me (and my family) and have actually surreptitiously contacted previous neighbors, law enforcement, past employers, places where I have lived for the past 30+ years. Even tried to get information on me when I lived overseas!!!

That if I tried to sell they would do what they could to queer any potential deal by not providing an HOA Disclosure Packet, which here in Virginia they are not required to do. Or find various and sundry violations which after the contract fell through they would just apologize for the mistake.

I have also been verbally threatened a number of times with extortion and blackmail and that they would destroy me and my family if I just didn't allow them to do what they wanted to do, and to be quiet. They've done this in ways that I couldn't get them on a recording or I would have filed a complaint with the local PD.

Yes, this sounds amazing.. but all true!!!! As God is my witness....

I was told they were afraid that the self-dealing and conflicts-of-interest and whatever else they have done are felonies and therefore not protected by our D&O insurance or the Virginia statute protecting "volunteers".

However I am moving forward by having my property surveyed and getting a septic permit which is good for a year.

Mike

JohnB26 (South Carolina)
Posts: 1,001

Posted:

The local County/State Department of Health is well aware of the "issues" and various violations in our small community and are just waiting in the wings.....

Then the issue WILL be soon resolved.

I, personally, would hope for the County's quick action as it would be the cheapest solution.

ps. should the directors be sued, could anything actually be collected ?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Michael

Without reading your narratives/pleas, let me ask you a question. Is the bottom line that the county (whoever) would hookup all 12 homes to county sewage for $100K or about $8K per house?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MichaelS55 on 01/05/2015 1:54 PM
Question 1: If the HOA sues me the homeowner they get to pick/choose their attorney since they are footing the bill. But what if I bring suit against the HOA including the Board/Officers is it the insurance company who then gets involved and chooses which attorney or firm to represent the HOA? The reason I am asking is that I believe if an insurance company would see the facts of the case they would prefer to settle quickly and quietly at a fraction of the real liability that the renegade Directors put themselves in. If the HOA chooses the attorney and pays the fees then it will be a long fight as some on the Board have very deep pockets and have already told some of the lesser financially able homeowners that they would foot the bill in defending the HOA/Board. I have been very very careful in not doing anything that the HOA could come after me for.

Way too complex a scenario for a simple answer. Potential litigants are HOA, individual directors, individual HOs, a group of HOs acting together, and one or more govt entities. Each will be represented by their own counsel. Problem is accentuated because actions took place over years - and individual liability may vary based on actions of different members of different boards. Records may not have been kept well. Some claims may be lost under statute of limitations or other grounds.

The HOA has an obligation to notify ins co as soon as they are aware of a potential lawsuit. Ins co gets to run the litigation (including choosing trial lawyer to defend). - But as obvious from my list of potential litigants, there will be lawyers around every corner once this opens up - (Whoever files the first lawsuit is likely to name everyone they can - then there will be counterclaims).

Ins co may deny coverage or may deny coverage to some directors. Then again, ins cos usually attempt to get all claims against all parties resolved before making a final settlement. Too many unknowns at this point.

You are finding pieces as you go. Wait til a dozen or so lawyers are digging in. I'm sure you will be on overload.

Best case scenario is - county supervisors sue HOA - HOA is covered - Ins co decides to pay and supervisors agree to accept full amount of policy - Everyone signs off and no further claims - Fines from regulating agency are covered in the claim - New facility is built to 2014 spec - HOs (or HOA) pay for capital expenditure over time. Not likely to be anywhere near that simple.

Good starting place for you is to draw up a detailed timeline and consult with a lawyer. In litigation, dates drive everything.

Sikubali jukumu. Read all posts at your own risk.

MichaelS55 (Maryland)
Posts: 44

Posted:

First, some of the existing and recent past Directors who had a hand in all of this each have net worth's exceeding mid 7 figures and each of the properties here are worth $1MM some are $2MM. You would think that people with these assets wouldn't be so greedy for the nickel and dime stuff, but they are. Perhaps I can run across a local HOA law practice that sees $$ in this low hanging fruit, everything that I've mentioned in this blog is HOA documented with dates and (except for the verbal threats) with signatures,

There is not a local County run septic system in our area (closest is about 15 miles distant), and none scheduled to be built any time in the near future. The County would or could take over the existing system which they have a right to do. They just would do what is necessary to get the septic system properly functioning and then just bill the HOA or homeowners directly.

I myself would ask the County to force each homeowner to get their own septic system located on their respective lots and then just shut down the community septic system. In fact I have proposed this a number of times over the years to the various BoD's that each of the 10 Lots should get their own septic systems and that we shut down the community system and sell off the assets: the pumps and the 5.5 acres of property being 1/2 used as a drain field and 1/2 in reserve which has beautiful views of the Potomac and river access! Told them we could very easily liquidate the assets for about $300k to $400k and then divide it among the 10 Lots with the proceeds easily paying for our own septic systems with about $10k-$15k left over for each Lot.

Also, by getting rid of this antiquated septic system we can turn a liability into an asset and reap the rewards. All of the mis-deeds by past Boards goes away. Plus, if this septic system ever completely fails and begins to dump sewage into the Potomac river the lawsuits filed will be tremendous: Virginia, Maryland and Chesapeake jurisdictions, Army Corps of Engineers, Virginia Maritime, Wetlands, you name it! Plus all of the privately affected homeowners in the surround area!!

The BoD did not think this was a good idea in getting our own septic systems because it wasn't in their self-serving interests!

Some of them have egos well beyond their capabilities, and they actually believe in their own lies and bull. Some of them still think that the D&O insurance will cover them, but I don't think so!! The President two weeks ago updated the D&O policy to cover past Directors and Committee members. Will the D&O cover past misdeeds? Kinda like getting fire insurance after the house has already burnt down!

But what these guys have done to the community is unconscionable. Especially the guy who chose not to install a septic tank 27 years ago and empties all of his solid waste directly into our common septic system. The impellers in our pump station are acting like a garbage disposal grinder with all of the solids being mixed together with the effluent thereby creating a slurry of suspended solid waste going into our septic field. The past and current BoD's know all about this and in fact the homeowner is one of our Board Members and the Treasurer!!!!

His position is: The HOA let me do it back then and it saved me $5k .. They got their 4th bedroom and I got to use the community holding tanks as my septic tank. The County even told the HOA that he needs to get a septic tank but the BoD wont do anything about it and actually supports him not doing it.

Yes gentlemen, amazing. But all true without any hyperbole.

Mike

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 01/05/2015 3:08 PM
Michael

Without reading your narratives/pleas, let me ask you a question. Is the bottom line that the county (whoever) would hookup all 12 homes to county sewage for $100K or about $8K per house?

Narrtives aside, my question remains as above.

TimB4 (Tennessee)
Posts: 21,061

Posted:

John,

I read the narrative. The answer is no. The County is only saying that the existing system needs to be repaired/replaced. The 100K is to repair/replace the existing system to todays standards.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MichaelS55 on 01/05/2015 3:41 PM
I myself would ask the County to force each homeowner to get their own septic system located on their respective lots and then just shut down the community septic system. In fact I have proposed this a number of times over the years to the various BoD's that each of the 10 Lots should get their own septic systems and that we shut down the community system and sell off the assets: the pumps and the 5.5 acres of property being 1/2 used as a drain field and 1/2 in reserve which has beautiful views of the Potomac and river access! Told them we could very easily liquidate the assets for about $300k to $400k and then divide it among the 10 Lots with the proceeds easily paying for our own septic systems with about $10k-$15k left over for each Lot.

Also, by getting rid of this antiquated septic system we can turn a liability into an asset and reap the rewards. All of the mis-deeds by past Boards goes away. Plus, if this septic system ever completely fails and begins to dump sewage into the Potomac river the lawsuits filed will be tremendous: Virginia, Maryland and Chesapeake jurisdictions, Army Corps of Engineers, Virginia Maritime, Wetlands, you name it! Plus all of the privately affected homeowners in the surround area!!

Mike

This is your core issue. Everything else is a distraction. If I was in your shoes, I would forget about going to the BoD again and see how far I could get with my fellow HOs (and if needed afterward, I'd go to the County). I would prepare a petition and go door to door collecting signatures. I'd invite HOs to lunch, to dinner, to a backyard barbecue, to whatever.

You seem ready to let old mis-deeds go - so stop talking about them. Let everyone know that you will stay on the high road and you are not out for blood - and the way to accomplish that is to stop talking about past wrongs. Put your petition together. Script your message. Don't vary from the script. Don't overload people with detail - You don't need much more than what you wrote in these two paragraphs.

It's ok to be passionate about your proposal - It's not ok to drift into being passionate about being victimized - that's how you lose people.

If it's as good an idea as you think it is, then go make it happen. Myself, I like it. You could convince me to sign your petition - Might cost you a drink or two - but you'd get my signature.

Sikubali jukumu. Read all posts at your own risk.

MichaelS55 (Maryland)
Posts: 44

Posted:

exactly Tim.

If it was just a matter of $10k to hook up to a county sewer system I and some others would do it tomorrow and gladly, but it is not.

We would have to spend at least $100k for repairs and to bring it up to 2014 standards (the engineering firm thinks closer to $120k when all is said and done), and then still be stuck with an HOA community-maintained common septic system!! Still being run by the same bozos who got us into the mess. That would be $10k to $12k to keep the common septic system.

However...

For $8k to $13 five of the Lots could perc for a 4 or 5 bedroom conventional septic system.. Low figure gravity fed, high figure with a pump-up.

For $19k to $25k the other five could perc for a 3 or 4 bedroom septic system using an Advanced Treatment System.

If we went to each Lot having its own septic system we could liquidate the common system with net proceeds being about $250k-$300k that could be split among the 10 Lots thereby paying for our own systems plus a bit left over.

If we get rid of the common system all the "past sins" go away, and the HOA no longer has to manage a septic facility!

Plus we have individual control over how our septic systems are operated and maintained (or not) without affecting other homeowners.

The money each Lot need to spend is essentially the same. However the BoD is pretty much ego-driven and uses the septic system as a way to control the community and to advance their own interests.

They refuse to listen to a black-and-white business optimal business solution. They are more concerned about other things...

Anyhow, I trust I have explained my "plea and narrative"...

It is more complicated than just "I don't like his pink flamingo" on the front lawn..

Again, any ideas that I have overlooked or help would be appreciated...

Mike

JohnB26 (South Carolina)
Posts: 1,001

Posted:

$100,000 to bring it up to standards

12 homes.

$8,500 per home

nothing spent in past years

sounds reasonable to me

however

we are dealing with tight-wad MILLIONAIRS

MichaelS55 (Maryland)
Posts: 44

Posted:

Quote:

Posted By NpS on 01/05/2015 6:54 PM

Fact is I proposed that core issue and straight up business solution in 2008 all to no avail, in fact what I got is major grief. Remember, we are only a small 12 home community with 10 of the homes on the community septic system. Some members of the BoD have spent years compromising various homeowners in one way or another so most are afraid of the 3 or 4 who control the HOA.

This past summer I broached the subject again when I found the BoD was going to issue a no-violation HOA Disclosure for one of their friends to some new potential buyers of a 4 bedroom home, and then hold it over the new owners heads later on.

Which resulted in me funding the Septic Study that found all of the significant O&M deficiencies and soon to fail drainfield.

And yes I agree wholeheartedly about being passionate about being victimized! LOL

The County makes it pretty clear that they do not want these common septic systems and our community is the last in the County to have one. I think I may just turn the whole thing over to the County Department of Health, and then file a formal complaint with the County and let them do what they do. They may even force all of the Lot owners to construct their own septic systems and have the HOA shut down the common system.

Anyhow gentlemen, I want to thank you for your interest in giving me ideas and avenues to take that I may have overlooked.

Re's

Mike

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By MichaelS55 on 01/05/2015 7:36 PM

This past summer I broached the subject again when I found the BoD was going to issue a no-violation HOA Disclosure for one of their friends to some new potential buyers of a 4 bedroom home, and then hold it over the new owners heads later on.

Actually, VA law wouldn't allow the Association to hold over the new owners head.

Per VA § 55-509.7 [emphasis added]:

G. When a disclosure packet has been delivered as required by § 55-509.5, the association shall, as to the purchaser, be bound by the statements set forth therein as to the status of the assessment account and the status of the lot with respect to any violation of the declaration, bylaws, rules and regulations, architectural guidelines and articles of incorporation, if any, of the association as of the date of the statement unless the purchaser had actual knowledge that the contents of the disclosure packet were in error.

MichaelS55 (Maryland)
Posts: 44

Posted:

excellent, thanks for that statute and emphasis. I will pass it on - excellent.

However it now makes the issue of the County mandated 3 bedroom minimum as found in our Deed of Dedication even more complex to unravel for the four homes built with 4 bedrooms; which exceeds the engineered size of our 30-bedroom drainfield.

The only feasible way out of this is for each of us to get our own drain fields, I cant think of another way.

Illegally BoD approved 4 bedroom site plans, no violation found HOA Disclosure statements during re-sales, common septic system failing due to lack of proper O&M with a drain field at its end of life.

(BTW, the Board of Directors stated as part of its non-professional self-authored "2011 Septic Reserve Study" that our drainfield has about 25 years of life left, while the Soil and Septic Engineering firm this summer said that it is at end of life!)

The proverbial Gordian knot - and ripe for the taking in billable hours once the law suits begin to be filed...

To be honest, some of the homeowners cant wrap their minds around the whole thing as being too overwhelming for them. They don't see the jeopardy they have been put in. While most of the homeowners see the jeopardy as they were part and parcel of making it happen and are trying to position and shield themselves from the pending liability.

Tim, I'm impressed by your knowledge of Virginia HOA law and quick grasp of the situation. Any legal recommendations or referrals?

Mike

TimB4 (Tennessee)
Posts: 21,061

Posted:

Michael,

Nope, no legal referrals. I already provided my recommendation on locating legal assistance.

When I had my issue with my Association (well, the one that may have gone to litigation), I was able to resolve it by educating the membership (which took 3 years) via unsanctioned newsletters. Once informed, the members made informed decisions and voted people off the board.

What was interesting to find out was that the issue was centered around one individual. That individual had served for so long that everyone else took his interpretation of the governing documents and applicable statutes as gospel. Once he was removed and individuals started to do their own research, they realized that the information I was providing was correct and my issue was resolved. After it was resolved, I was elected to the Board and have been serving ever since.

MichaelS55 (Maryland)
Posts: 44

Posted:

all good advice.

Problem is I don't have 3 years as the septic system mechanicals are failing and the drain field may fail at any time.

In fact one of our two septic pumps was taken out of commission in October for well over a month by a Director who took it upon himself to turn it off because he thought it was defective, so we were operating on a single pump. If that single pump went out we would have been SOL, so to speak! And he kept this outage essentially to himself and two or three of the other Board members.

Took over a month to get it fixed because all of the local licensed septic contractors don't want to work on our system because of the BoD. They don't want the liability because the BoD wont listen to their recommendations, ie; get the homeowner without the septic tank to install one.

Our previous well-known fully licensed local Septic System Maintenance company wont even return any phone calls from the BoD because of the liability they put him under.

Its just a bad situation.

MarkM31 (Washington)
Posts: 556

Posted:

How far away is the county sewer system?

MichaelS55 (Maryland)
Posts: 44

Posted:

15 miles, and there are no plans in extending it past where it is.

All new home construction are single family on 3 acre plots with advanced treatment septic systems w/ drainfields.

I've been in contact with the local Virginia Health Department since this past summer, in fact the Septic Engineering company I hired to do the Study is very highly regarded by the County Officials and they told me I was in good hands with them. Which proved to be 100% true. So I kept the County apprised "unofficially" of the results of the Study as it came in - they were not in the least bit surprised.

When the BoD refused to have a Septic Study performed I told them that I as a homeowner was going to have it done and pay for it myself, and I kept them informed as to dates and times. The day before the Engineering company was going to come one of the Directors called them up and strongly advised them not to as they would be completely liable for anything that went wrong or any damage.

At the next Board Meeting I told the Board that it was my right to have the community Septic System inspected through completely passive non-intrusive means and manner and that they couldn't prevent me from doing so, and not to threaten my contractors that I am paying. They finally relented after a two hour argument saying "its your money if you want to waste it, go ahead. But if anything goes wrong or any damage is done by your contractor it is your responsibility."

When the Study was done and formally presented to them at a Board Meeting they just completely ignored it.

Mike

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By MichaelS55 on 01/05/2015 10:08 PM

When the Study was done and formally presented to them at a Board Meeting they just completely ignored it.

Did you make the study available to all members or just the Board?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Mike

Is there anything preventing you from installing your own septic system and breaking free of the common septic problem?

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,061

Posted:

NP,

That wouldn't resolve the issue of the community system.

Additionally, as a member of the Association, Mike would still be responsible for his share of the cost of operation, maintenance and upkeep of the community wide system, which is mentioned in the CC&Rs as a service to be provided by the Association. Regardless if Mike is utilizing the system or not.

MichaelS55 (Maryland)
Posts: 44

Posted:

Quote:

Posted By TimB4 on 01/05/2015 10:22 PM

Posted By MichaelS55 on 01/05/2015 10:08 PM

When the Study was done and formally presented to them at a Board Meeting they just completely ignored it.

Did you make the study available to all members or just the Board?

Yes, I made the Study available to all 12 of the homeowners in September which included the 5 Board Members.

And two weeks later at the next Board Meeting I formally submitted the Study to the Board and discussed it during "homeowner time".

Essentially the two individuals who control the Board (for the past 11 years) said that the Study was just someone else's opinion and while perhaps interesting that no action needed to be taken. And that "they" the Board were protected by a bogus self-prepared "Septic Reserve Study" which they prepared themselves 3 years earlier.

(Additionally, after the meeting I was admonished for sending the Study to all of the homeowners first without submitting it privately to The Board beforehand for its review, and was also threatened. It was suggested that I put my home up for sale and should move out of the neighborhood.)

CyrstalB (Maryland)
Posts: 457

Posted:

The Potomac River has a lot of environmental groups that fight this type of problem. If there is a threat potential of your system failing and a drop of it can head to the river, you may have some serious support there.

There are new regulations as to why type of drain field you will be required to put in, all of which are down right awful for curb appeal. So you wouldn't want individual drain fields, trust me. Have a brother in MD who had to replace one.

MichaelS55 (Maryland)
Posts: 44

Posted:

Exactly Tim, spot on!

I am blessed to have the financial wherewithal to construct my own conventional septic system (about $13k) and then disconnect from the community system.

But the BoD/HOA will still want me to pay my share of the cost and the liability for the community system, which they refuse to do. One of my neighbors tried to do this 15 years ago and the Board sued him and they won.

The firm who did the Study even suggested that the HOA promote the idea of some homeowners to get their own septic systems as a way to prolong the life of the existing community system, again it fell on deaf ears.

I even provided a breakdown of the benefits to the HOA if I disconnected from the HOA and gave them a "Quit Claim" for the septic infrastructure which my Lot has paid for over the years, my Lots share of the 5.5 acre real property being used as the active and reserve drain field, and the value of the additional 3 bedroom capacity that the HOA would then have which they could even distribute to other homeowners to give them 4 bedrooms.

Here is my benefit breakdown that I submitted:

1. Septic Infrastructure: $280k or $28k my share
2. 5.5 Acre Real Property: $250k or $25k my share
3. 3 Bedrooms at $100k per: $300k

Total I would be turning over to the HOA: $353k

(note: each bedroom in our community provides between $75-$125k in real appraisable value)

I in turn would also be using about 1/2 an acre of my property for a drainfield (valued at $30k), and pay for its construction of $13k using the high end. My outlay: $43k.

I didn't even get to the point of asking them in return for the above I just wanted a liability release letter to be recorded with the properties stating that my Lot was no longer financially or legally responsible directly or indirectly for the common septic system and $35k as liquidation which is just 10% of the value I would be turning over to the HOA.

Their answer was no, not going to happen. You can go ahead and build your own septic system if you want but you are still on the hook for the community system per the Deed of Dedication which you contractually obligated yourself to by buying here.

My retort to them was that part of that contract also called for the BoD/HOA to properly operate and maintain the common septic system (now failing) which they have not done for decades and as documented, and to also have restricted the homes to a minimum of 3 bedrooms which they also haven't done.

Anyhow.. the short answer is yes I can construct my own septic system but would still be completely on the hook legally and financially for the community one.

That's essentially what the potential complaint and law suit would be about; with the "liquidated damages" being $393k which would include my share of the community system being turned over or lost to the HOA plus how much it would cost me to build my own septic system on my property.

I felt that 10% of what I was giving the HOA plus the liability release was more than reasonable. The BoD does not.

Their greed and ego exceeds any threshold of common sense. They see me or others disconnecting from the community system as a big personal loss and one less Lot they can control. They are blind to the benefits.

MichaelS55 (Maryland)
Posts: 44

Posted:

yes, any septic failure resulting in untreated sewage being put into the Potomac would be horrendous from any perspective which is why the Virginia Dept of Health was so restrictive about the number of bedrooms per Lot (3) and ensuring the proper O&M of our community septic system .

We are a waterfront community and are literally right on the Potomac. Some of the riparian owners have their own docks while there is a 200' community dock where we each have a boat slip on about an acre of common property which also has a concrete boat ramp.

Most every home built in our section of the County for the past 15 years was required to use an Advanced Treatment System vs. a traditional septic system, and we are all familiar with them. They really are not that if installed properly and there are a number of different technologies that can be used. Not too worried about the ATS and it can be incorporated into a low-cost landscaping scheme which most homes do.

NpS (Pennsylvania)
Posts: 4,216

Posted:

You may want to search on www.martindale.com for a firm that specializes in Homeowners Association Law. Did a quick search for you - firm that seems to stand out is Chadwick. Several smaller firms and individuals also look interesting.

Sikubali jukumu. Read all posts at your own risk.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

...yes, any septic failure resulting in untreated sewage being put into the Potomac would be horrendous from any perspective which is why the Virginia Dept of Health was so restrictive about the number of bedrooms per Lot (3) and ensuring the proper O&M of our community septic system ....

NO, they were, in fact, NOT restrictive as the homes were actually built (? in violation of their respective building permits ?) with 4 bedrooms !

The BOD had NO, repeat NO, authority to 'permit' said construction against county health code.

GET THE MINUTES OF SAID APPROVALS.

REPORT THE IMPROPER NON COMPLIANT HOMES TO THE PROPER AUTHORITIES.

However, the owner /builder of said home was KNOWINGLY in violation of any building permit issued by the authority having jurisdiction. (which is NOT the HOA - the HOA merely governs APPEARANCE)

y'all have a mess which can only be solved by bringing the EXISTING system up to present code

or

spend the same $$$$$ on the attorneys and let the chips fall where they may

then

bring it up to code anyway

MichaelS55 (Maryland)
Posts: 44

Posted:

Quote:

Posted By NpS on 01/06/2015 8:32 AM
You may want to search on www.martindale.com for a firm that specializes in Homeowners Association Law. Did a quick search for you - firm that seems to stand out is Chadwick. Several smaller firms and individuals also look interesting.

Thanks for taking the time to help me.

The HOA uses Chadwick and they are a leading firm in the HOA field, and they mostly represent the HOA's not the homeowner. Though I'm sure for the right amount of retainer and billables they would represent most anyone.

I will go to the martindale site to see what I can find.

The Site Surveyors are out today staking the property with the Septic Engineering firm coming out later this week, maybe next week depending on the weather.

I'm moving forward on this. Some of the friendly neighbors have been eyeballing the guys doing the survey so they know I'm doing what I said I was going to do.

Thanks again,

Mike

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MichaelS55 on 01/06/2015 8:58 AM

The HOA uses Chadwick and they are a leading firm in the HOA field, and they mostly represent the HOA's not the homeowner. Though I'm sure for the right amount of retainer and billables they would represent most anyone.

If Chadwick represents HOA, they won't represent you. In the quick search I did, many of the little guys looked strong in real estate law - which may ultimately be where you need the expertise.

Sikubali jukumu. Read all posts at your own risk.

RayC4 (Virginia)
Posts: 173

Posted:

You might take a look at Rees Broome in northern Va.

TimB4 (Tennessee)
Posts: 21,061

Posted:

All,

I know that we are trying to help Mike.
I remind you of the posting rules.

(3) No Mention of Community/Company/Person Names: In order to fairly enforce (2) and prevent liability, we do not allow the mentioning of any community name, company name or product. Please also do not post the full name of any person.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Mike,

Perhaps you can provide an e-mail address (just make one for this specific purpose if need be using gmail, hotmail, yahoo, etc.). This way, individuals can provide you with recommendations if they have any.

MichaelS55 (Maryland)
Posts: 44

Posted:

thanks tim.. [email protected]

well, got my Lot survey done today..... Next step is to have the septic system engineers come and stake out where the drainfield will be located.....

Thanks again to everyone who has provided suggestions ...

My next door neighbor and Board Member let me know today that he is 100% behind me in this endeavor and that all my proposals to the BoD make every bit of sense from a business, financial, legal, and "community" perspective and that some on the Board are having a hard time rationally refuting it, though that is what they are intending to do... We shall see what develops..

Mike

NpS (Pennsylvania)
Posts: 4,216

Posted:

When you are done with your system, 3 out of the 12 houses will have private septic systems. Correct?

So you would only need 4 more to have a majority.

Or am I missing something?

Sikubali jukumu. Read all posts at your own risk.

MichaelS55 (Maryland)
Posts: 44

Posted:

yes you are correct.

What you are missing here is that one of the Lots not connected to the common septic system has a 100 year old farm house as the main structure and had its septic system grandfathered in and exempt from having to connect to the community system at the time the subdivision was developed.

The other Lot is empty with no main structure or improvement on it, and it was originally part of the "farm house" and as such is also exempt from having to connect to the community septic.

The only good thing with this is that we already have two precedents of Lots not being required to connect to the common system.

The other thing is that the woman who lives in the farmhouse is in her mid 70s and is driven to church every Sunday by one of the Board members who owns a 4 bedroom house and is adamant that we maintain the common system at all costs and a hill to die on.

The other unimproved Lot is owned by another homeowner who also built a 4 bedroom house, but moved out last year and the house has been empty ever since and been up for sale (his PITI is $8k a month) plus electricity and outside maintenance. He made some sort of deal years ago with the above mentioned Board member and gives that Board member his two proxy votes every year for the past 9!

The only good thing here is that this homeowner is carrying a lot of paper, and knows he will never be able to sell his House/Lot and the other unimproved Lot if the HOA ever gets tied up into litigation, or even the rumored possibility of litigation. We all know that real estate agents don't want their deals queered so they steer potential buyers away from troubled properties/communities.

So except for another homeowner and Board member who looks very favorably on what I'm trying to accomplish I am pretty much on my own. The other homeowners are either fearful of the BoD or were previously Board members themselves who helped to get us into the jam we currently are in.

There are a lot of moving pieces on this chessboard.

I'm trying to stick to the point:

"the community septic system has not been properly operated or maintained for the past 30 years as documented by the Engineering company who performed the inspection and recommendations, along with the actual failures now taking place. I want off of the community septic system and get my own as it makes complete business, financial and legal sense to do so;\ not only for me but also for everyone else if you just run the numbers. Plus the only way that each of these 5000sf estates can get a County CO for 4 and 5 bedrooms is to get their own septic system on their own property. The County will never approve anything more than 3 bedrooms using the community septic system and drainfield."

I'm hoping that some of the people will begin to think and see the light. To see that I am moving on getting my own septic system, bad things are not happening, and that it is not a scary thing to do. Change does not have to be filled with dread and trepidation. If that guy over on Lot 2 can do it, so can I.

Since most of them are greedy little porkers I want them to think: "Wow, how much more would my house be worth if I was able to get a CO for 5 bedrooms vs. the 3 I am currently restricted to!!"

Anyhow gentleman.. been a long day for me. And I do have a day job! A home-based business of course, but still a day job!

JohnB26 (South Carolina)
Posts: 1,001

Posted:

...you are, and will be, still responsible for your share of the common system...

? why have you not sought a receiver to ensure compliance with the maintenance requirements ?

JohnB26 (South Carolina)
Posts: 1,001

Posted:

? ... or called 'code enforcement' about the illegally constructed homes ... ?

MarkM31 (Washington)
Posts: 556

Posted:

Quote:

Posted By JohnB26 on 01/07/2015 6:51 AM
? ... or called 'code enforcement' about the illegally constructed homes ... ?

What illegally constructed homes? The homes in question were undoubtedly built with all the necessary permits. So where the problems comes in is that some homes exceeded bedroom capacity of the privately operated septic system. It is the responsibility of the private utility, in this case the septic district, to enforce their rules. This was not done.

It is now far to late, the county does not have and never did have jurisdiction, and all other statutes have elapsed.

NpS (Pennsylvania)
Posts: 4,216

Posted:

My son has a large home in CA where the there are no public sewer systems. The local practice when listing a house for sale is to only list the number of bedrooms that the septic system is rated for. To stay within "code", the "non-bedroom" bedrooms are built without closets in them. If the septic system is upgraded, a closet can be added.

Apparently, this practice is so widespread where he is that the number of "listed" bedrooms has much less impact on the listing price. Number of total rooms and square footage does.

Sikubali jukumu. Read all posts at your own risk.

MarkM31 (Washington)
Posts: 556

Posted:

Quote:

? why have you not sought a receiver to ensure compliance with the maintenance requirements ?

That would probably be incredibly complicated. Sometimes it's just better to let things fail

JohnB26 (South Carolina)
Posts: 1,001

Posted:

not complicated

petition for breach of corporate fiduciary duty

a 'no brainer' for an attorney

simple

but expensive as the receiver would have to be paid

ps. I previously suggested to let things fail

JohnB26 (South Carolina)
Posts: 1,001

Posted:

..... mandated by the Virginia Department of Health as well as the local City Council.....

Then file a written complaint about the 4 bedroom homes with the above !

Unless they are NOT actually 4 bedrooms but built for 'future' conversion.

TAKE APPROPRIATE LEGAL ACTION re: BREACH OF YOUR CONTRACT (Covenants)

JohnB26 (South Carolina)
Posts: 1,001

Posted:

..... get a County CO for 4 and 5 bedrooms .....

Seems the county IS 'the authority having jurisdiction'

(one must remember what one writes

else: Phlogiston ~ 'google' it)

MarkM31 (Washington)
Posts: 556

Posted:

If CO's are issued for SFR's.

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