Public land on HOA

Started by FrankR8 • 20 replies • 1206 views

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FrankR8 (Florida)
Posts: 7

Posted:

My first question here. Hopefully someone can help. The County bought 14 Lots and 26 acres of common area in our association after it was platted and the association was formed. The county attorney is telling us we can not charge them any assessments because of a supreme court ruling that public lands for public use can not be assessed. They allow public access to our private association. We really do not want this.

SheliaH (Indiana)
Posts: 6,964

Posted:

That's a legal question (and possibly a complex one) - you really need to get your association's attorney on this.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

SheliaH (Indiana)
Posts: 6,964

Posted:

Also, have you asked the county what it intends to do with the land and express your concerns that way? You might also want to get your local representatives involved to help your association as well.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MichelleK5 (New York)
Posts: 161

Posted:

Very interesting, and definitely a question for an attorney.

Just out of curiosity, who sold the lots and acres to the county? And what were they zoned for?

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By FrankR8 on 03/24/2017 3:35 AM
My first question here. Hopefully someone can help. The County bought 14 Lots and 26 acres of common area in our association after it was platted and the association was formed. The county attorney is telling us we can not charge them any assessments because of a supreme court ruling that public lands for public use can not be assessed

Ask your own attorney, but my understanding is the same as the county's attorney.

Quote:

Posted By FrankR8 on 03/24/2017 3:35 AM
They allow public access to our private association. We really do not want this.

Why did your association sell? Your only hope is to buy the county out, which probably won't be easy

FrankR8 (Florida)
Posts: 7

Posted:

The land is now a park. The association never sold it. It was obtained in a bankruptcy sale. The park spans on both sides of our association and the public walks our private streets. It is a tangled mess the board before me looked past. When this happened the original board gave the streets to the city via deed. The city was suppose to maintain our roads from then on. The city deeded the county the roads on their half then and easement across our street and two years later in 97 deeded our road back to us and told the board they never took the streets.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Curious, did they purchase via eminent domain?

FrankR8 (Florida)
Posts: 7

Posted:

This in now a county park in the city limits with us in the middle having all the liability.

FrankR8 (Florida)
Posts: 7

Posted:

No. The purchased it with grant money.

AllisonD (Florida)
Posts: 449

Posted:

Ignore my previous post

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By FrankR8 on 03/24/2017 8:23 AM
The land is now a park. The association never sold it. It was obtained in a bankruptcy sale. The park spans on both sides of our association and the public walks our private streets. It is a tangled mess the board before me looked past. When this happened the original board gave the streets to the city via deed. The city was suppose to maintain our roads from then on. The city deeded the county the roads on their half then and easement across our street and two years later in 97 deeded our road back to us and told the board they never took the streets.

Then what is your question. They can because they did. All this happened 20 years ago and any chance to stop or change it ended long ago. What is the issue with the streets? It seems like the HOA owns them? But doesn't want to? I would guess that at this point the best you could do is force the city (or county) to take them back as was originally done in 1995 and unravel the 1997 recission.

Seems like if you want anything to proceed you'll need some professional help, especially given the age of these issues.

But again, why are issues two decades old being dredged up? And you'll never loose the park or public access, learn to live with that.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Frank,

If these things happened twenty years ago, there is not much you can do about now. It sounds like everyone sat on their hands when the stuff hit the fan.

The developer should have incorporated the HOA and transferred ownership of the common areas before he ever sold the first lot. It sounds like he retained personal possession of land that was meant to be common area. It also sounds like none of those who purchased lots made any meaningful objection in the subsequent bankruptcy proceeding. The description of the deeds to the roads sounds like the HOA boards at the time made little to no effort to resolve the problem. Bottom line is that you are stuck with a very unfair situation because no one was willing to take action when action was needed.

One bright note: There is a body of common law that holds that those who use a road are obligated to contribute to its maintenance. Even though your association owns the roads it has a claim against the county to contribute to the costs of the roads due to the traffic going to the park.

FrankR8 (Florida)
Posts: 7

Posted:

I am a new owner and new to board. The original board was headed by the original engineer of the place and he held president till last month. I am wading through it. I met my attorney Friday and he is doing research on case law. The county park is deed restricted and in our Hoa. He says they should be paying and we could force the land not for public depending .

MarkM31 (Washington)
Posts: 494

Posted:

Quote:

Posted By FrankR8 on 03/25/2017 4:12 PM
The county park is deed restricted and in our Hoa. He says they should be paying and we could force the land not for public depending .

Not a chance. Your lawyer is taking your money and telling you what you want to hear

JanetB2 (Colorado)
Posts: 4,219

Posted:

Does your CCR's note that the association is responsible for streets or other land? If not pull up the past agreements between developer and local government. These are most likely filed with your local county records. What do they note that developer agreed to such as putting in the infrastructure with local government taking on future costs such as for the road.

FrankR8 (Florida)
Posts: 7

Posted:

I use this attorney all the time. I find him to be honest. He says bay all rights they are in the association and subject to all HOPA covenants and restrictions but he has to verify any case law because he has never seen this happen before.
The plat for the sub development was made and the association was formed before the county bought the lots. The county bought them in a foreclosure sale and deeded them in a combined special deed. It says in the deed "This deed is subject to the following"Conditions, covenants, easements,limitations, reservations, restrictions, and agreements of record ;if any."

All the lots included on the county's deed are included in our bylaws and describe the HOA as a Private for residential community. The streets in their part are deeded to them and the section that has homes are deeded to the association. Like I said before the county said there is case law that states we can not make them pay. My attorney looked for 15 minutes in the Supreme Court Search engine he has and said this is unique because the case the county is supposedly using is not easily found with standard search phrases he uses. He said usually they annex the property into the county or city when these situations happen but never buy into an association. He stated White vrs Metropolitan Dade case where the deed restrictions prevail in for public use purposes. We like the park and do not really want to collect money. We only want a couple of items and will work with them to get them off the association. They just will not budge.

GenoS (Florida)
Posts: 4,276

Posted:

It's good that you have an attorney you get along with and trust. There are some good ones out there. Does he have any experience with appeals, though? If the situation is that unique and unusual then it's a good bet the county has deeper pockets than you and will pursue a case they might lose at a lower level up through the higher courts in order to establish a precedent. It sounds like a minefield that will be difficult and expensive to navigate, even with a trustworthy attorney on your side.

In my HOA we've got some lot boundary issues left over from the original developer. The time to address these issues was at turnover back in 1994. So unless a generous homebuyer moves in who wants to fund a few hundred thousand dollars worth of legal fees for us, we just have to learn to live with it and ameliorate the problems as best we can.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By FrankR8 on 03/26/2017 4:20 AM
He stated White v. Metropolitan Dade case where the deed restrictions prevail in for public use purposes.

WHITE v. METROPOLITAN DADE COUNTY may be found online at:
http://www.leagle.com/decision/1990680563So2d117_1658.xml/WHITE%20v.%20METROPOLITAN%20DADE%20COUNTY

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By FrankR8 on 03/26/2017 4:20 AM
I use this attorney all the time. I find him to be honest. He says bay all rights they are in the association and subject to all HOPA covenants and restrictions but he has to verify any case law because he has never seen this happen before.
The plat for the sub development was made and the association was formed before the county bought the lots. The county bought them in a foreclosure sale and deeded them in a combined special deed. It says in the deed "This deed is subject to the following"Conditions, covenants, easements,limitations, reservations, restrictions, and agreements of record ;if any."

All the lots included on the county's deed are included in our bylaws and describe the HOA as a Private for residential community. The streets in their part are deeded to them and the section that has homes are deeded to the association. Like I said before the county said there is case law that states we can not make them pay. My attorney looked for 15 minutes in the Supreme Court Search engine he has and said this is unique because the case the county is supposedly using is not easily found with standard search phrases he uses. He said usually they annex the property into the county or city when these situations happen but never buy into an association. He stated White vrs Metropolitan Dade case where the deed restrictions prevail in for public use purposes. We like the park and do not really want to collect money. We only want a couple of items and will work with them to get them off the association. They just will not budge.

The attorney potentially should argue the fact that the "general public" are utilizing the HOA roads to access the park. Therefore, the local government should either 1) pay assessments for the property in order to help maintain roads being used by the "general public" or 2) take possession of the roads and future maintenance.

JanetB2 (Colorado)
Posts: 4,219

Posted:

LOL ... Or if you own the roads put up access gates. Wonder what their response would be then ... Ha ha ha

FrankR8 (Florida)
Posts: 7

Posted:

Weird situation . We have an access gate for our section . The park is on lots platted in our deed restricted community. There is one spot where they own a lot that crosses the road we use and they let the general public across it. That is the only spot we care about changing.We do not want the public in our section. They will not budge.My attorney can not find the case law they mentioned they are using so I called yesterday to get the name from them and I am awaiting the answer. I am getting a second opinion on Friday from another attorney. I want to be sure before we act on any impulse.

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