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Plats Say One Thing; Declaration Another?

Started by AugustinD • 26 replies • 1640 views

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AugustinD
Posts: 5,144
Posted:
My condominium's Plats and Declaration are properly recorded with the County. The condominium has about 100 patios. Each patio is enclosed by a fence. The Plats give the dimensions of the patios and designate them, by explicit shading and wording, as "limited common areas" (LCA's). The Declaration states that each owner has the maintenance responsibility for his or her unit's LCA. The Plats state that anything outside these LCA's is "common area" (CA). The Declaration states the HOA has the maintenance responsibility for the CA. The Declaration states that "the patios are limited common areas." The Declaration permits owners to apply to enlarge their patios. Where the HOA approves (with an eye to aesthetics and a lot of paperwork), and per the Declaration, owners have done so.

-- For liability and other reasons, should the HOA amend the plats? Or is the fact that the Declaration says "the patios are limited common areas" sufficient to show who has maintenance (and so liability) responsibility?

-- Where an owner has enlarged a patio and no approval is on record, who has maintenance and liability responsibility?

This is on its way to the HOA attorney. But I want to be as informed as possible via others' experiences.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By AugustinD on 06/25/2017 12:40 PM

Or is the fact that the Declaration says "the patios are limited common areas" sufficient to show who has maintenance (and so liability) responsibility?

Amending the PLAT may help in the future but I think, based on what you provided, the documents work well together.

Quote:
Posted By AugustinD on 06/25/2017 12:40 PM

-- Where an owner has enlarged a patio and no approval is on record, who has maintenance and liability responsibility?

I would suspect the member.
No approval on record might not be the same as no approval was granted.
Has anyone searched past minutes or asked the owner for their copy of the approval?

Now, if no approval was granted, this issue needs to be addressed.
It can be addressed by legal action to remove the improvement.
It can also be addressed by retroactive approval.

Quote:
Posted By AugustinD on 06/25/2017 12:40 PM

This is on its way to the HOA attorney.

Best thing.
You may want to run it by a Property attorney as well.

JeffT2 (Iowa)
Posts: 880
Posted:
My declaration has a provision that says "The Owner of each Unit shall maintain, at his expense, any improvement or other alteration made by him."

Do you have such a provision?

As far as maintenance is concerned, that statement may be all you need. (Maybe add a definition of maintenance as including all code and safety...)
AugustinD
Posts: 5,144
Posted:
Thank you, Tim. At this point in my study, I am about where you are: I hope the attorney says something like, 'The documents on record with the County already cover the situation well. Either retroactively approve the questionable patios, or restore them to the original dimensions, being as fair and reasonable as possible. Use "aesthetics," per the Declaration. Compare to past approvals, with an eye to not selectively enforcing. Any other questions on what "fair and reasonable" would be for any given enlarged patio, call me.'
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By JeffT2 on 06/25/2017 5:55 PM
My declaration has a provision that says "The Owner of each Unit shall maintain, at his expense, any improvement or other alteration made by him."

Do you have such a provision?

As far as maintenance is concerned, that statement may be all you need. (Maybe add a definition of maintenance as including all code and safety...)

JeffT2, I just checked. Yes! "Improvement" is not formally defined in the Declaration, but I am at this point pretty hopeful the HOA is in good shape and will not have to spend an arm and a leg on counsel's opinion on this matter. Thank you for posting.
JeffT2 (Iowa)
Posts: 880
Posted:
Quote:
Posted By AugustinD on 06/25/2017 7:55 PM
Posted By JeffT2 on 06/25/2017 5:55 PM
My declaration has a provision that says "The Owner of each Unit shall maintain, at his expense, any improvement or other alteration made by him."

Do you have such a provision?

As far as maintenance is concerned, that statement may be all you need. (Maybe add a definition of maintenance as including all code and safety...)


JeffT2, I just checked. Yes! "Improvement" is not formally defined in the Declaration, but I am at this point pretty hopeful the HOA is in good shape and will not have to spend an arm and a leg on counsel's opinion on this matter. Thank you for posting.

Here is one:

"Definitions. Certain terms used in this Article shall have a meaning as follows, provided any dispute over the characterization of work within one of the following meanings shall be conclusively decided by the Board of the Association.
...b) "Improvement" shall mean the addition of a new structure, element or facility, other than a structure, element or facility otherwise provided for by this Declaration or any Supplementary Declaration."

Notice it does not specify that the improvement has to be within a unit.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By AugustinD on 06/25/2017 12:40 PM
My condominium's Plats and Declaration are properly recorded with the County. The condominium has about 100 patios. Each patio is enclosed by a fence. The Plats give the dimensions of the patios and designate them, by explicit shading and wording, as "limited common areas" (LCA's). The Declaration states that each owner has the maintenance responsibility for his or her unit's LCA. The Plats state that anything outside these LCA's is "common area" (CA). The Declaration states the HOA has the maintenance responsibility for the CA. The Declaration states that "the patios are limited common areas." The Declaration permits owners to apply to enlarge their patios. Where the HOA approves (with an eye to aesthetics and a lot of paperwork), and per the Declaration, owners have done so.

-- For liability and other reasons, should the HOA amend the plats? We are not attorneys ... but if the HOA property has changed potentially the Plat should have changed. In my state and subdivision to divide or change property is the responsibility of the Owner to pay for Plat changes with the County Records after approval by the HOA. Or is the fact that the Declaration says "the patios are limited common areas" sufficient to show who has maintenance (and so liability) responsibility? That is a question for your HOA attorney. You and your attorney need to determine who had permissions to enlarge any patios and those who did not.

-- Where an owner has enlarged a patio and no approval is on record, who has maintenance and liability responsibility? Patios per your statement are "limited common areas (LCA)" and therefore each owner has the maintenance responsibility for his or her units LCA. The issue is the original patio area vs. enlarged patio ... If many were enlarged without approval what will be the criteria to enlarge others in the future???? An HOA BOD is supposed to be fair and equal following your HOA guidelines. If you did not stop such activity in past and allowed, the question is how do you want to proceed in the future?

This is on its way to the HOA attorney. But I want to be as informed as possible via others' experiences.

AugustinD
Posts: 5,144
Posted:
Thank you, Jeff and Janet. Here's an update: Signs are that the developer-Declarant back around 2001 'cut deals' with around 15 condo unit owners to give them enlarged patios. The Declaration states the Declarant was then supposed to amend the Plats. It did not. Also the warranty deeds dating back to the original transfer from seller-Declarant to buyer-Member show no such specification for an enlarged patio.

The Declarant has long been gone. Board members have been properly elected per the Declaration ever since.

Because it has been over 10 years, I understand adverse possession type-claims could kick in. (I think this hinges on a number of factors. I can only say I expect this will play a role in the decision-making.) Else I believe a "fair and reasonable" standard has to be attempted. What happens next will depend on the advice of the attorney. Right now, if no documentation of Declarant approval of the enlarged patios can be found, or if some documentation is available but it lacks real legal force, then I am inclined to recommend approval and obtaining waivers of liability from all owners of these enlarged LCA patio Units. If the HOA can find any documentation that these Declarant transfers of common area to LCA were part of the purchase agreements back then, then I hope the attorney will say go after the Declarant to amend the Plat.

I won't support future enlargements. My reason will be the cost of amending the Plat is too high. Some members may cry foul. Still if push comes to shove, I think the courts would support this decision, perhaps muttering throughout, 'Those damned Declarants. Yes they have a right to change things some to sell their homes. But they better follow their own Declaration in doing so.'
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By AugustinD on 06/29/2017 7:00 AM

I won't support future enlargements. My reason will be the cost of amending the Plat is too high. Some members may cry foul. Still if push comes to shove, I think the courts would support this decision, perhaps muttering throughout, 'Those damned Declarants. Yes they have a right to change things some to sell their homes. But they better follow their own Declaration in doing so.'

You should potentially amend your documents whereby anyone wanting to enlarge their patio MUST pay and submit a potential plat for Amending. The same as my subdivision for subdividing lots. It should be the Owner / Petitioner responsibility for those costs not all other Owners. LOL ... Agree with your statement on the damned Declarants ... I and others in my last subdivision sued the original and new declarant after they conspired to screw us over. In hindsight the new declarant wished they had not gone down that road ... they did not like the money, time, and effort it cost them. Unfortunately, it is difficult or impossible to fix stupid
AugustinD
Posts: 5,144
Posted:
Janet, here, re your Declarants wishing they had not gone down this road. I generally do not loathe Declarants. After all, their efforts are why I end up choosing the places to live that I do. But in this case, and clearly in the case to which you allude, the Declarant dropped the ball. I will endeavor to post updates on how this unfolds.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
August

I suggest you might consider supporting patio expansion as others have already done so. Does not seem like that big of a deal. Of course the owner wanting to expand would have to pay for any needed doc changes.
AugustinD
Posts: 5,144
Posted:
Hi John and others, to give a clearer picture, space between the buildings that hold the condo units is typically very close. There are few options for further expansion at this point. But yes, anyone wanting to expand should, among other things, agree to pay the price of plat amendment. I imagine this will be a large deterrent.
GenoS (Florida)
Posts: 4,276
Posted:
Keep in mind that amending the plat might be impossible. We need to do that here, too, but it's not going to happen because every single homeowner would have to consent, as well as their mortgagees, because modifying the plat amounts to a change in the common property.
AugustinD
Posts: 5,144
Posted:
Geno, that's an interesting point. It's also now way over my head. I leave it to the HOA attorney.
GenoS (Florida)
Posts: 4,276
Posted:
AugustinD it's complicated, at least for us. Our attorney was the one who told us how involved it is, not to mention at great expense. Almost half of our lots had homes built on them not conforming to the plat. The proper course of action was to rectify things after the 2nd developer screwed up. Nothing was done, however, and to be honest nobody even noticed for over 20 years. We have considered adverse posession to fix the lot lines but that would involve at least a survey of each "offending lot". 50 lots at 300 per survey wouldn't even be all of the necessary expenditures.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By GenoS on 06/30/2017 3:29 PM
Keep in mind that amending the plat might be impossible. We need to do that here, too, but it's not going to happen because every single homeowner would have to consent, as well as their mortgagees, because modifying the plat amounts to a change in the common property.

Depends on how stated in CCR's ... . In my subdivision certain lots are allowed to be subdivided down to a certain level (we are on acreage). It is noted in the CCR's AND our State Laws that when subdividing the cost for new plat is on the owner wanting to subdivide. If your CCR's allow anything to be added such as additional lots as long as the individuals follow the docs which make such statements which owners agree to AND in our case also stated in the State Laws ... you do not need every single homeowner consent. You just need the ACC and BOD consent.
AugustinD
Posts: 5,144
Posted:
Geno and Janet, My condo's Declaration permitted the Declarant to enlarge patios (converting common area to limited common area) to sell units. The Declaration also permits the ACC to approve patio enlargements. So I tend to think the consent of all owners is not needed.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By AugustinD on 07/01/2017 2:11 AM
Geno and Janet, My condo's Declaration permitted the Declarant to enlarge patios (converting common area to limited common area) to sell units. The Declaration also permits the ACC to approve patio enlargements. So I tend to think the consent of all owners is not needed.

I would agree .
JohnC46 (South Carolina)
Posts: 14,265
Posted:
As an add on. In one townhouse association I belonged to our decks were considered exclusive use (for the owner) common areas. They were done cheaply and had to be replaced. The HOA was paying for the replacement but owners were offered the option to expand their deck at their own cost. Some guide lines were set up as to how much one could expand but the point is, there was never any discussion/mention about changing plats. If one was buying the deck was there for them to see and know it was theirs. No plat needed for this.
AugustinD
Posts: 5,144
Posted:
JohnC46, that's interesting. Thank you for sharing it. Can you tell me if your HOA's plats show the specific bounds, dimensions etc. of the common areas? My HOA's plats show the exact dimensions of the limited common areas for each Unit. To me, that's where the problem comes in.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By AugustinD on 07/02/2017 7:32 AM
JohnC46, that's interesting. Thank you for sharing it. Can you tell me if your HOA's plats show the specific bounds, dimensions etc. of the common areas? My HOA's plats show the exact dimensions of the limited common areas for each Unit. To me, that's where the problem comes in.

Sorry it was several associations ago and I have no records. Remind me. What type of units you have.
AugustinD
Posts: 5,144
Posted:
My HOA is a condominium community in the suburbs. The roughly 100 patios are decent-sized, like 20 foot by 8 foot typically, with some far outsized compared to these latter dimensions and the plats.
JeffT2 (Iowa)
Posts: 880
Posted:
Some ideas:

Just because someone expands the patio (and fence) into the common area does not make it a limited common area. The expanded portion of the patio is still common area. You do not necessarily need to change the plat, unless you specifically want to make it limited common area.

I understand that the declarant had the authority to create more limited common areas. I also understand that your ACC can give permission for expanded patios. Do your documents specifically allow the ACC to create limited common areas? That is a lot of power to give to the ACC, and may conflict with other parts of your documents that deal with common area.

Your condo docs should have a provision on how to abandon, encumber, sell, or transfer the Common Area or any portion thereof. Condo law in your state (whatever state that is) may have provisions. (California has a lot of law on this.) Do you have such a provision?
AugustinD
Posts: 5,144
Posted:
JeffT2,

My condo's gov docs allow the (post-Declarant) ACC to expand the patios, converting common area to limited common area. On the other hand, per your suggestion, I have begun studying the Condo statute in my state. By my reading, the Condo statute requires that the plat be amended. When it is not the Declarant changing the LCA, the Condo statute requires a vote of 67% to amend the plat. So Geno's point above kicks in for the exactly one case where the ACC did this (long after the Declarant's departure).

Two other parts of the Declaration and the Condo statute now have my attention as well. The county taxes each unit in part on the basis of the unit's percentage ownership of common area land. So far it appears the common area land is less than what appears on the plats. This means those with patios that have not been enlarged might have been overpaying a bit all these years. I think my next step, if I want to keep digging, is to look up the tax description of some of the units.

I know this is a can of worms. What I do not know is how big a deal this is legally. I do not want to create problems. And yet, the board had quite a lecture on this from the HOA attorney a few months ago. I see why.

Thank you for bringing up the Condo statute. Much of my HOA's Declaration is a repeat of it, when it comes to the plats and converting common area to limited common area. I have to study it. Or as mentioned, the matter will go to the HOA attorney.
AugustinD
Posts: 5,144
Posted:
The county tax land descriptions are online. They include maps of each unit with dimensions. The common elements are not counted at all in each unit's taxable property. The LCA for each unit on the tax map is much smaller than what is on the plat. Whatever the county is doing does not seem relevant, unless I want the county to increase the tax on each unit where I live. I think the only remaining relevant issues are liability concerns (who has maintenance responsibility for what?); whether the Declarant was legally obliged to amend the Plat way back when and so has to pay for this now; and the one unit that had, long after the Declarant left, ACC approval to do a slight but quantifiable increase to its LCA, without approval via a 2/3rds vote.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By AugustinD on 07/03/2017 8:12 AM
The county tax land descriptions are online. They include maps of each unit with dimensions. The common elements are not counted at all in each unit's taxable property. Which you do not want ... potentially HOA "Common Property" is potentially tax exempt. The LCA for each unit on the tax map is much smaller than what is on the plat. Whatever the county is doing does not seem relevant, unless I want the county to increase the tax on each unit where I live. That is OK as long as the HOA is not being billed for the LCA Property added ... potentally if they are they need to have transferred to proper owners. I think the only remaining relevant issues are liability concerns (who has maintenance responsibility for what?); whether the Declarant was legally obliged to amend the Plat way back when and so has to pay for this now; and the one unit that had, long after the Declarant left, ACC approval to do a slight but quantifiable increase to its LCA, without approval via a 2/3rds vote. Potentially need to review your State Laws ... In my state anyone who installed a "permanent fixture" such as pouring a concrete patio the HOA would have one year if not approved to file any potential lawsuit. If not addressed ... the owner gets to keep what they paid for even if was not approved. Potentially that if fair and equitable. Essentially if you do not like what anyone has installed you need to address the issue in a timely manner.

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