COMMON AREA

Started by KathyS15 • 6 replies • 1137 views

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KathyS15 (Ohio)
Posts: 28

Posted:

I live in a small planned community development in Ohio. There are 28 townhouses - 4 to a section.

Our HOA Board has determined that home owners are now responsible for maintaining some Common Area that belong, are deeded to and owned by the HOA. Specifically, the extensions of the private street that lead to our driveways and the sidewalk off the driveway to the front porch.

They are saying that only myself and my next door neighbor (who's at the end of our section) are the only ones that use it, exclusively, so why would the Association dues cover an expense that not everyone uses. CAN THIS BE LEGIT?

SheliaH (Indiana)
Posts: 6,964

Posted:

Association dues are used to cover common areas, including those owners may or may not use (e.g. a clubhouse swimming pool).

If you answers on what is or isn't legal, go to a private attorney. That said, your board can't simply say ok, owners are now responsible for a part of the common area. That will require a change in your governing documents, which have to be approved by a certain percentage of homeowners (check your documents to see what that is). If they can't show you a specific citation in the documents that state that area of the street and sidewalks is homeowner responsibility, tell them you expect them to maintain those areas accordingly. Put it in a formal letter if you have to and keep a copy for your records.

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

KathyS15 (Ohio)
Posts: 28

Posted:

Thanks for your response! I've talked to my city zoning department, county auditor, company that did my mortgage location survey and a real estate lawyer (who concurs that they can't do this). Right now I'm gathering as much insight I can before possibly incurring the expense of going to court.

Here's a little more information - The Declaration says "Common Areas" shall mean and refer to all areas of land designated on any recorded subdivision plat of our subdivision, OTHER THAN THE LOTS, which are intended to be devoted to the common use and enjoyment of all Owners.

In the Bylaws the definition is - "Common Areas" shall mean and refer to all areas of land designated on any recorded subdivision plat of our subdivision, OTHER THAN THE LOTS, AND DRIVEWAY/LOT AND UTILITY EASEMENTS, which are intended to be devoted to the common use and enjoyment of all Owners.

"Lot" shall mean and refer to any sub-lot shown upon any recorded subdivision plat of our subdivision.

All the people I mentioned above have looked at the plat/parcel that's recorded with our county. Mine does not show the street extension and sidewalk as my property. The Association's plat/parcel is all the areas surrounding our individual sub-lots.

Declaration ARTICLE V, Section 5.2 - Easements of Encroachments. "Such easement shall exist to a distance of not more than eighteen inches as measured from any point on the common boundary between adjacent Lots or between the Common Areas in the portion of each Lot adjacent therto..... No easement shall exist as to any willful, unauthorized encroachment by and Owner.

Section 6.2 - Driveway/Lot Easements. "There shall be easements, with respect to each residential Unit, for the placement of a driveway, sidewalks, an exterior post lamp, pad mounted A/C units and privacy fences (the "Driveway/Lot easements"). Each residential Unit's driveway shall be for the exclusive use of the Owner of such Unit, such Owner's household, guests and invitees.

DO I OWN EASEMENTS MORE THAN 18" ..... OTHER THAN THE PORCH SEEN ON MY PLAT? Looks to me like the only thing "exclusive" to my use is my driveway (what I pull onto to get into my garage).

DouglasK1 (Florida)
Posts: 2,046

Posted:

I've done some research on this and found a few things. Since the situation is very similar to how governments handle homes outside of HOA, I have read up on that quite a bit.

It is apparently common in the west, especially in California, for local governments to require adjoining landowners to maintain sidewalks that are on public property. It seems common everywhere for governments to not maintain driveway aprons on public right of ways. It is also common to require owners to maintain landscaping (mow, for example) between the sidewalk and street. In the absence of explicit language in the association governing docs allocating responsibility, it seems reasonable to follow the lead of how local governments handle the situation.

You could always get an attorney's opinion, but that is exactly what it says, one person's opinion. The ultimate arbiter would be a judge, but it will most likely be very expensive to get that answer.

Escaped former treasurer and director of a self managed association.

JanetB2 (Colorado)
Posts: 4,219

Posted:

If you have had that many agencies and individuals (including Real Estate Attorney) state violates your CCR's I would go with the majority ...

With what you have posted I would concur, but you need to understand we are not attornies and only offering our personal opinions.

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By KathyS15 . . They are saying that only myself and my next door neighbor (who's at the end of our section) are the only ones that use it, exclusively, so why would the Association dues cover an expense that not everyone uses. CAN THIS BE LEGIT ?

KathyS15 Ohio : So now there will be 14 pairs of owners sharing snow clearing, ice control etc with the Association presumably still an 'occupier' /potentially 'premises-liable' without a Declaration or covenant amendment ?

1- Tempting to speculate about new pairings where one tolerates glare ice but one wants prudent ice control. But that's a wrong way to look at it : suppose some pairings happily ignore maintenance totally ?

2 - You may also want to check out definitions of "maintenance" within your governance documents, applicable state la or both.

My own jurisdiction blissfully re-defined maintenance of exclusive use common areas to include "repair after breakdown' and thereby hysterically made 'end of life' balcony reconstruction literally an individual unit expense. ( Fortunately few noticed )

So, will each pair now have to replace the 'downloaded areas' after end of life failures ?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By KathyS15 on 03/31/2017 6:09 AM
I live in a small planned community development in Ohio. There are 28 townhouses - 4 to a section.

Our HOA Board has determined that home owners are now responsible for maintaining some Common Area that belong, are deeded to and owned by the HOA. Specifically, the extensions of the private street that lead to our driveways and the sidewalk off the driveway to the front porch.

They are saying that only myself and my next door neighbor (who's at the end of our section) are the only ones that use it, exclusively, so why would the Association dues cover an expense that not everyone uses. CAN THIS BE LEGIT?

Boards that do not realize the governing documents are a contract pull this nonsense often. They think what they are doing is reasonable, so why shouldn't they be allowed to do it? Here is a case where an Association re-defined what the common areas were and got in trouble with the courts:

http://caselaw.findlaw.com/nm-supreme-court/1636906.html

Like Kathy's situation, the HOA tried to exclude part of the HOA's roads from being the HOA's responsibility to maintain. The courts threw the amendment out. I would expect Ohio courts think similarly.

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