Can Board let 1 owner pave over common area between dwellings for driveway?

Started by DonG7 • 21 replies • 1254 views

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DonG7 (Utah)
Posts: 11

Posted:

I'd appreciate an attorney's opinion on this:

One owner wants to pave the 10 ft wide common area (NOT "limited" common) between his and his neighbor's detached dwellings and use it for his personal RV pad.

A few of our 38 units have gotten away with this longer ago, but we wonder if it's even legal for the Board to begin permitting this again.

KerryL1 (California)
Posts: 14,550

Posted:

I don't think any of the regulars here are attorneys, so contact a real HOA attorney.

Still, your governing documents should say what if anything can be done with your HOA's common areas. Our CC&Rs, for instance, say nothing can be done with them without a 67% agreement via owners votes to sell or give them away.

GeorgeR8 (Arizona)
Posts: 182

Posted:

Our state law says 80% of owners have to agree for something like this but that is for condos. For SFH I would think it would be in the documents.

GenoS (Florida)
Posts: 4,276

Posted:

Not an attorney, Don, but my first reaction is Absolutely Not. As long as it's common property then the association could have it removed and the bill sent to the homeowner who did it. This is different than "usual" violations since it involves ownership and control of the common property. If the owners who have done this in the past haven't asserted adverse posession of the property then I think the association can take it out no matter how long it's been sitting there as long as it's still common property. This isn't enforcement of covenants or rules, this is ownership of the common property and I don't think any of the usual defenses against enforcement apply (like laches, waiver or estoppel).

You should speak with an attorney. If there are any attorneys on this forum, they aren't offering legal opinions.

JeffT2 (Iowa)
Posts: 880

Posted:

I agree with Kerry and George that it is likely in your governing documents.

Probably also in state law.

However, there's an interesting wrinkle. Paving over the common area does not stop it from being common area. Now, if the owner built a locked garage, then that is a significant encroachment and effectively removes the common area. But just paving it, well, it's still there. You could park your car on it, too. Just sayin.

SueW6 (Michigan)
Posts: 814

Posted:

I'd be concerned about water or sprinkler lines, or gas or electricity lines under this property that is going to be paved.

Also - who maintains? Use by whom? Hours? Liability?

Kettle of fish . . .

RoyalP
Posts: 1,104

Posted:

Can - O - Worms

DonG7 (Utah)
Posts: 11

Posted:

Thanks for your opinions. I'll just add that Utah State law says nothing. All our CC&R say is that no changes to the "properties" unless plans submitted to Board and they approve.

The Board did approve it, but I question if even they have the power to change the common area without a vote. The idea is "Vested Expectation" that owners have that there won't be radical changes made to the "properties" on the decision of 2 out of 3 Board members.

AugustinD
Posts: 5,144

Posted:

DonG7, that's too bad that the board approved this. Inform the board that any plats that now show this as common area probably should be amended, else there is the potential for liability problems to arise. Plats are typically on legal record with the county and serve as legal notice. I do not think amendment is cheap. It may involve paying a surveyor. Plats can be quite exacting when it comes to who owns what, even in a condo. One slip and fall accident, and the victim will be looking for the deepest pockets, meaning probably your HOA's insurance policy. The one HOA attorney I know who gave an opinion on this is a pretty calm guy. But he blew up and read the Board the riot act about giving away common property and making it a member's to "maintain."

Plus the board now gets to deal with others' requests to pave similar areas around their property and use the new pavement for parking spaces.

KerryL1 (California)
Posts: 14,550

Posted:

I agree with Augustine.

But, Don., the phrase you should be looking for in your HOA's governing documents is "common areas" UNLESS the definitions of "proper tie," as you've used it IS common areas, which I doubt

LetA (Nevada)
Posts: 2,679

Posted:

I'm not an attorney either, I would tell them HF-NO!!! I would highly suggest they rent a RV storage space.

DonG7 (Utah)
Posts: 11

Posted:

I see all the problems too, which is why I wouldn't have done it.
But I don't know how to stop them, other than to sue, but on what basis?

CC&Rs: "'Common Area' shall mean all real property including the improvements thereto owned by the Association for the common use and enjoyment of the owners. Such common areas shall include, but shall not be limited to, easements granted for the common use and enjoyment of the owners."

The plat map shows that area between homes is common area (not limited).

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Don

Suing aside, a "threatening" letter from the HOA lawyer might put it to rest.

AugustinD
Posts: 5,144

Posted:

DonG7, I would write the board a polite letter. Enclose a copy of the plat. Explain that you think an amendment to the plat will be needed; else you understand liability problems loom. Suggest they get the advice of the HOA's attorney.

But be prepared for this to fail. Chalk it up to the mediocrity of volunteers.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Since its common area, you should ask the board if you can park "your" RV between their two houses after its paved. Its common area after all.

RoyalP
Posts: 1,104

Posted:

PRECISELY

..... owned by the Association for the common use and enjoyment of the owners. .....

It 'may' be paved over, but it is STILL a common area owned by the Association for the common use and enjoyment of the owners.

? Are you certain the area between the homes in question is a 'common area' and not merely an 'easement' ?

JeanI (Louisiana)
Posts: 112

Posted:

Common property (areas) is property owned by the community, not the Board. In some jurisdictions, homeowners pay taxes on the common property and have an ownership interest in it. Therefore, the Board cannot sell this property without a vote of the membership who owns it.

GenoS (Florida)
Posts: 4,276

Posted:

There is a difference between condominium associations and HOAs. Unit owners in a condo association (usually) have an ownership interest in an undivided share of the common property.

In a Homeowners Association, however, the HOA itself owns the common property and holds title to it, and the individual homeowners do not have an ownership interest in it.

The difference is subtle but can be important. At least in Florida.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By GenoS on 01/14/2019 2:06 AM
There is a difference between condominium associations and HOAs. Unit owners in a condo association (usually) have an ownership interest in an undivided share of the common property.

In a Homeowners Association, however, the HOA itself owns the common property and holds title to it, and the individual homeowners do not have an ownership interest in it.

The difference is subtle but can be important. At least in Florida.

Same in Ohio. Property taxes in the Common Elements are rolled into individual unit owners' tax bills; the Association does not pay property taxes.

Re: the original post, the problem I see is that the Board is trying to allow Common Elements to be converted into Limited Common Elements. At least in my condo association's Declaration, these two things are defined in detail (and parking pads specifically are listed as Common Elements). To change that would require an amendment to the Declaration and approval by 75% of the membership. I realize an HOA is different, but it would still be converting Common Area/HOA property into Limited Use Common Area, and I would think that this should also require an amendment and affirmative vote from the majority of the membership.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By CathyA3 on 01/14/2019 10:41 AM

Same in Ohio. Property taxes in the Common Elements are rolled into individual unit owners' tax bills; the Association does not pay property taxes.
...

D'oh! Meant to say "individual **condo** unit owners' tax bills.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

As an HOA director, I would advise against it. Mainly, the person will park their private vehicle, with your endorsement, on common property. You don't want any sense of obligation should someone vandalize it while parked on the HOA-endorsed parking pad.

Then again, your HOA obviously allows permanent parking of RVs. So, you're clearly not as strict as other HOAs.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By KellyM3 on 01/16/2019 7:38 AM
As an HOA director, I would advise against it. Mainly, the person will park their private vehicle, with your endorsement, on common property. You don't want any sense of obligation should someone vandalize it while parked on the HOA-endorsed parking pad.

Then again, your HOA obviously allows permanent parking of RVs. So, you're clearly not as strict as other HOAs.

Our 100 driveways are all common property. I think it unlikely any theft or vandalism could be laid at the HOA's feet since it explicitly disclaims any responsibility for security.

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