Exclusive use vs common area

Hello all,

Thanks in advance for any help. My HOA is attempting to clear up some inconsistencies in our CC&Rs, Rules and Regulations. We are a Planned Community in Arizona, but have a significant amount of Common Area that is considered exclusive use. I've attached a county map that shows our common area and the lot lines for each townhouse/resident property. Here are the problems, concern:

1. Driveways, walkways to front/side doors, mailbox/security light structures (a built structure with lights, stucco, house number and an attached mailbox), and most front/side yards are on HOA owned property.
2. The CC&Rs specifically state that the HOA will maintain Common Area.
3. The CC&Rs (through amendment in 2003) attempt to transfer responsibility for driveway repair/replacement to the lot owner served by that drive--essentially exclusive use.
4. The CC&Rs are silent on Walkways and other "exclusive use" items.
5. Historically, the HOA takes care of landscaping and minor walkway repair. It does not handle driveway or mailbox/security light structure maintenance. The lighting/electricity for the security "boxes" is paid for by the lot owner who uses a particular structure/mailbox.
6. The only attempt at conveyance of Exclusive Use is for driveways with the 2003 amendment, but it is contradicted elsewhere in the CC&Rs (bad attempt at amending the CC&Rs).
7. Nowhere in our governing documents does the word "exclusive use" appear.

None of this was an issue for more than 30 years because no major repairs were needed to any of these structures. Now, we have several walkways in need of repair. Driveways are in need of repair. wiring to the mailbox structures is in need of replacement.

My questions are:

In Arizona how does a Planned Community legally convey Exclusive Use? I can't find a definitive answer in the state statutes for Planned Community or Case Law. The Condominium Community laws deal with most of this, but that doesn't help.

Is there any other way to transfer responsibility for portions of Common Area to adjacent lot owners without defining it as Exclusive Use? (I think I know the answer...it's an absurd question, but I'll ask).

Thanks again for any help/observations.

-Hugh

Exclusive use basically means that only "owners" "members" have a right to use said property. For example, you have a fancy dog park in your community, and people from an adjoining community come to your community to use the dog park. Not only are they trespassing, but they do NOT have exclusive use to use the dog park, because it is reserved for "members only."

As for your other concerns, examine your reserve study. What does your reserve study say when it comes to major repairs and maintenance?
perhaps your BOD was lax and did not perform preventive maintenance to extend the life of the common areas.
Sidewalks and asphalt typically have a 30 year life span before they need to be replaced.
Looks like a special assessment might be in your future.

Thanks for your quick responsive.

I'm a "committee of one" trying to clean up a lot of grey area. The current Board is eager to put these issues to rest once and for all--and do it legally. Yes, past boards have been laxed and made a lot of mistakes. We're a small association of 23 members/lots. Things are pretty laid back, so most of these things haven't been a problem in the past. Plus, individual members have been generous when it comes to repair and maintenance.

However, I can find nothing in statute or case law that accomplishes what past boards have tried: Transfer maintenance/repair for pieces of HOA-owned property to individual owners.

We have one legally-defined Common Area (Common Area A). Map is here: https://drive.google.com/file/d/0BwE7XKSgI9kCTndDZUxxZnhULTg/view

Common Area A includes driveways, walkways and mailbox/lighting structures used by individual lots. The only attempt to "redefine" sections of Common Area A was made in the early 2000s with an amendment to the CC&Rs that attempts to make lot owners responsible for driveway maintenance. However, the land remains HOA property and was never siphoned off "Common Area A." There was no attempt to refile Common Area A as anything but Common Area A with Pima County.

Historically, lot owners maintained the security lighting/mailbox structures that service their lots. Again, these structures sit on HOA owned property.

However, historically, the Board payed for maintenance of walkways (which also sit on HOA owned property).

(This division of who pays what makes NO SENSE to me.)

Basically, it's a mishmash of what past boards did with no clear guidance in the CC&Rs. Yes, it's a mess now because there's a large stretch of driveway that needs serious TLC. As to be expected, the lot owner feels it's a Board responsibility, and not an individual responsibility.

The current Board wants to do things right, but this is a real head scratcher. I can find examples that say the entire scheme is just plain wrong. I can find nothing that supports the position of past boards and precedent that sections of HOA-owned property can be transferred "at the will of the board." Condominium Communities deal with this stuff--that's the whole nature of a condominium. But that's not what we are. Plus, even if past Boards attempted to do something, it was never recorded. As it stands, "Common Area A" is the only property owned the the HOA. There are minutes with board actions....but as stated, it looks like those board actions where just plain wrong.

So, my task is convincing a bunch of old people that they've been wrong for the past 30 years--not easy....unless there's something somewhere that supports anything that they did.

I take it you don"t have a CAM aka community manager? do you pay association dues?
Perhaps a trip to the county recorders office is needed. Review the documents in your parcel. Are there CC&R's recorded with the master deed?

Perhaps taking to a real estate attorney would clear things up

Is your community gated? Are the Roads private?

Things sound a bit murky, but as you stated past BOD's were laxed and now your left with the crap.

Speak with a good real estate lawyer sounds like your HOA is in desperate need of an audit. "forensic" possibly

Thank you LetA and GenoS.

GenoS: Didn't realize you were my neighbor...JUST KIDDING. sounds like our situations are identical. I was empowered by our current board to clean all this up and present my findings to the BOD/membership. But as you say LetA, it's entirely possible a new board down the road will stick its head back in the sand.

We're self managed (should be easy to do with 23 houses). But we did have a management company a few years ago, and honestly that made matters worse and opened the current can of worms. For years, things were understood as voluntary and neighbors did things "out of the goodness of their hearts." A past board was sold a lot of snake oil by a management company and hired them. All of a sudden voluntary things like maintaining security lights became requirements with threats of fines, etc.

I was part of the faction that rebelled against this and "we" took control of the board in January. The management company resigned shortly after the election. Now we have to clean up a giant mess left by the management company and the past board.

Anyway, that's my sad story. I've recommended a good Tucson-based consultant and our new Rules and Regulations document will be vetted by an attorney before final approval.

To answer your questions LetA: We're not gated, but all roads are private and association property.

GenoS: An investigation of Arizona's "Exclusive Use" provisions scares the hell out of me. It has to be clearly defined in the CC&Rs and recorded with the County...at least if I read the law correctly. AND, "Exclusive Use" elements may be taxable....My main question is: can exclusive use be implied? My research says no. Specific to our situation, in the case of Driveways, was the conveyance of responsibility in the CC&Rs enough. Again, my research says no--but I'm not a lawyer. Guess we need to get one sooner rather than later.

Thanks again for your observations. I'll post any updates on my finding.

BTW GenoS: There is case law I read from Florida on hurricane damage. You may want to research that. Seems Florida has more examples of this than Arizona.

-HughD

We have a similar situation. For decades owners maintained sections of common area with the Board/Association pulling up the slack. Two years ago, the board hired a $200-a-month management company that didn't even bother to read our CC&Rs or educate themselves on our Rules and Regulations.

We succeeded in getting rid of the the management company, but there are still a lot of hurt feelings.

The current effort is an attempt to put into writing 30 years of history and be legal with everything.

Our CC&Rs are badly written. We were developed by someone who "dabbled" in real estate and our core documents reflect it. I was hoping we wouldn't have to amend the CC&Rs, but that's not looking possible now.

Glad to know I'm not alone in weird situations. Thanks again.

This is why Associations have reserve funds. The Reserves pay for the expected maintenance, repair and replacement of common elements, amenities, etc.

The amount of funds to be set aside is based on a reserve study.
To learn more about reserve studies, see the following thread:

Subject: Reserve Studies/Funds 101


I expect it would be done as it is in other areas.

For land: Members agree to take it, surveys are done and sales contracts are created. Speak to a real estate attorney.

For Common elements: Amend the CC&Rs


Amend the CC&Rs to remove responsibility from the Association and put it on the owner.

Failure to properly fund reserves (or even have reserves) happens more often then you think and it's the fault of past boards, the developer and the membership.

If funds are not available, the fix is special assessments.

A 55 plus community faces a similar dilemma, after years of neglect their reserves are non existent the board did nothing, the dues have stayed the same for 20 years, and now there are areas in the community that need major repair. The seniors all on fixed incomes cannot afford a costly 5 figure special assessment to remedy their problems.