Driveway sealing

Started by AnnS12 • 15 replies • 1353 views

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AnnS12 (Wisconsin)
Posts: 67

Posted:

We are a 56 unit self managed association in Wisconsin. When the Association was formed 20 yrs ago, the members agreed to have the unit driveways repaired and sealed every 2 years. The Association would contract for this along with repairs to our street, which we own. The members would then be assessed costs for the driveways and common area service drives. According to our CCR's "the limited commonaeas include the patio, or porches immediatly adjacent and appurtanent to each unit to which it has access by a door from the unit and the driveway immediatly adjacent and appurtanent to the garage door"

None of the members of the current board were living here at the time. We've never had any problems with this in the past. We get quotess, we notify owners of the upcoming assessment and it is deducted from their auto pay accounts on the designated date.

We have one owner. He is a past president of the board and has been here since the association was formed. He is the only owner who doesn't pay by auto pay and he is refusing the pay the assessment this year. He decided without notifying the board to seal his own driveway.

Do we have any recourse? He has always paid in the past and part of the assessment covers the repairs and sealing of the service drives, one of which leads to his driveway.
Would it be possible to make this a rule. We have our annual meeting soon and could take a vote from the members and add to our rules and regulations.

He is our problem child. Cuts his own lawn. Won't let our landscapers near his unit. We recently had all our street lights converted to LED lighting by a licensed electrician. He took his apart and then told everyone they were done wrong. We have not a problem with a light since we had them done.
You get the picture. He's a bully.

CathyA3 (Ohio)
Posts: 6,299

Posted:

There's always one, isn't there?

What do your CC&Rs say about maintenance responsibility for the limited common elements?

If your CC&Rs actually say that owners are responsible for maintaining the limited common elements - I've seen it go both ways - then technically he's in the right unless your community amended your CC&Rs to state that the association would be maintaining the driveways. If your CC&Rs don't say that the association is responsible, then you probably have no legal basis to do anything about this.

It's annoying, but even if your CC&Rs do say that the association maintains the driveways, I'd probably be inclined to let it go. I mean, what are you going to do? You can't make him remove the sealant, and the association probably isn't going to spend money redo it. in fact he probably saved you a few bucks. I'd say pick your battles, since it sounds like you have numerous options to choose from. :-)

LetA (Nevada)
Posts: 2,679

Posted:

Yes, there are always one or a few. Like Cathy said, what does your CC&R's say about maintaining your LCE's? Even if wording say the HOA shall maintain, the owner still can maintain them to the HOA's satisfaction. I myself last year pruned my tree because the tree company in my opinion butchers them As for the street light, who pays for the electric to the street light or lamppost? the owner or the HOA. If the HOA pays the electric, you might have cause to re-replace the bulb and bill the owner for the cost.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

ANN

So far his bullying seems to be working. He has the BOD running like a bunch of little girls. I see no need to make R&R's to cater to his whims. Notify him you intend to continue past practices concerning seal coating and billing each owner. If he refuses to pay the bill, take out a lien on his ass. Let the chips fall where they may.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 09/03/2021 2:15 PM
ANN

So far his bullying seems to be working. He has the BOD running like a bunch of little girls. I see no need to make R&R's to cater to his whims. Notify him you intend to continue past practices concerning seal coating and billing each owner. If he refuses to pay the bill, take out a lien on his ass. Let the chips fall where they may.

ADD ON

Even better as it is an assessment, threaten foreclosure if he does not pay.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AnnS12 on 09/03/2021 12:57 PM
When the Association was formed 20 yrs ago, the members agreed to have the unit driveways repaired and sealed every 2 years.

How curious that there's no indication above that the covenants provide that the Association shall maintain the driveways.

Quote:

We've never had any problems with this in the past.

This does not mean the HOA has not violated the covenants.

Are you of the opinion that whatever the majority want is the way things should be done, regardless of what the covenants say?

I am curious. I do not mean to be disrespectful. Do you know what "covenants" are?

Quote:

We have one owner. He is a past president of the board and has been here since the association was formed. He is the only owner who doesn't pay by auto pay and he is refusing the pay the assessment this year. He decided without notifying the board to seal his own driveway.

Do we have any recourse?

If the covenants say that each driveway is the maintenance responsibility of the corresponding owner, then your recourse is quite messy. If your Board wants to pursue this, pay a HOA attorney for advice.

He has always paid in the past and part of the assessment covers the repairs and sealing of the service drives, one of which leads to his driveway.

Quote:

Would it be possible to make this a rule. We have our annual meeting soon and could take a vote from the members and add to our rules and regulations.

In the words of Groucho Marx: The duck descends. And not once, but twice.

From an earlier thread by the OP:

Quote:

Posted By AnnS12 on 04/16/2021 9:08 PM
Article IV of Bylaws:
The limited common elements are reserved for the exclusive use of the owner or occupant of the Unit to which they are appurtenant. The limited common elements consist of the outside deck, patio or porches, if any immediately adjacent and appurtenance to each unit to which is has access by a door from the unit and the driveway immediately adjacent and appurtenance to the garage door to each unit.
Article VII of Bylaws:
Unit owners Responsibility. The owner of each Unit shall (a) maintain in good condition and repair and replace all of the components or installations within or used by the unit, including but not limited to all utility lines and installations, the heating and air conditioning systems for the Unit, fixtures appliances, water heater, equipment, interior walls, partitions, flooring ceilings, windows, window frames and doors, including all glass and locks in window and doors, (b) paint and decorate the interior or the perimeter walls and all walls and surface areas withing the Unit; (c) keep the patio deck or porch appurtenant to the Unit in a clean and neat condition; (d) keep and maintain in good and orderly condition its Limited Common Elements and repair and replace any portion of the Common Elements damaged through the fault or negligence of such owner or such owner’s family, guests or invitees or any other occupants of the Unit. Notwithstanding the above repairs to the Common Elements shall be affected by the Association but paid for by the Unit owner if within this section.

These are our bylaws. As I stated our attorney gave us a written opinion stating that since the vote taken was illegal it is not valid.

AnnS12 (Wisconsin)
Posts: 67

Posted:

CCR's State
"The unit Owner's responsibiilities. The owner of each unit shall (a) maintain in good condition and repair and replace all of the components or installations within or used by the Unit, including but not limited to, all utility lines and installations, the heating and air condition systems for the unit, fixtures, appliances, water heaer, equipment, interior walls, partitions, flooring, ceilings, windows, window frames and doors, including all glass and locks in windows and doors. (b) paint and decorate the interior of the perimeter walls and all walls and surface areas within the unit (c) keep the patio, deck or porch appurtenant to the unit in a clean and neat condition. (d) keep and maintain in good and orderly condition its limited Common Element and (e) repair and replace any pportion of the common elements damaged throught the fault or negligence of such owner or such owner's family, guests or invitees or any other occupents of the Unit. Notwithstanding the above, repairs to Common elements shall be effected by the Association but paid for the the unit owner if within this section.

The Association shall maintain in good condition and repair, replace and operate all of the common elements except as provided above

There is nothing specific to LCE.
The association pays the electric for the lamposts.

We thought of possibly reducing his assessment since he did his driveway, but part of the assessment pays for the service drives so he should definetly pay for that.

We are just afraid that other owners will start doing the same thing. We want to keep the uniform look so all driveways look the same. Right now his has a different coating.

Would we be ok insituting a rule regarding driveway sealing. According to the CCR's we ould approval of 51% of the votes of Units subject to jortgages to add any rules wich govern or regulate Assessments or responsiliby for maintenance and repair.

MichaelS56 (Minnesota)
Posts: 859

Posted:

In our Association the owners of their units do not own the driveways. The board is responsible for repairs, replacement and seal coating driveways. This money comes from their monthly assessment, not a Special or Limited asessment.

BenA2 (Texas)
Posts: 1,273

Posted:

The fact that it has always been done this way is not evidence that it is proper and the fact that only one owner disagrees is not evidence that it is proper. Was this recurring special assessment incorporated into your CC&Rs?

What makes sense or is fair does not necessarily translate to authority. I would check your state law and governing documents and go from there.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By AnnS12 on 09/03/2021 3:24 PM
CCR's State
"The unit Owner's responsibiilities. The owner of each unit shall (a) maintain in good condition and repair and replace all of the components or installations within or used by the Unit, including but not limited to, all utility lines and installations, the heating and air condition systems for the unit, fixtures, appliances, water heaer, equipment, interior walls, partitions, flooring, ceilings, windows, window frames and doors, including all glass and locks in windows and doors. (b) paint and decorate the interior of the perimeter walls and all walls and surface areas within the unit (c) keep the patio, deck or porch appurtenant to the unit in a clean and neat condition. (d) keep and maintain in good and orderly condition its limited Common Element and (e) repair and replace any pportion of the common elements damaged throught the fault or negligence of such owner or such owner's family, guests or invitees or any other occupents of the Unit. Notwithstanding the above, repairs to Common elements shall be effected by the Association but paid for the the unit owner if within this section.

The Association shall maintain in good condition and repair, replace and operate all of the common elements except as provided above

There is nothing specific to LCE.
The association pays the electric for the lamposts.

Yes, it does address LCEs: see bolded sentence above.

Also in your first post, you said "According to our CCR's "the limited commonaeas include the patio, or porches immediatly adjacent and appurtanent to each unit to which it has access by a door from the unit and the driveway immediatly adjacent and appurtanent to the garage door" "

So the driveways are the responsibility of individual owners, unless your CC&Rs have a statement elsewhere making an exception of them.

Quote:

We thought of possibly reducing his assessment since he did his driveway, but part of the assessment pays for the service drives so he should definetly pay for that.

You may not reduce assessments without amending your CC&Rs, and it may require unanimous approval. These sound like condos, which means the assessments will probably be based on par value or percentage of ownership, the sum of which adds up to 100%. You can't change one person's assessment without adjusting all of the rest. Do NOT touch assessments.

Quote:

We are just afraid that other owners will start doing the same thing. We want to keep the uniform look so all driveways look the same. Right now his has a different coating.

Would we be ok insituting a rule regarding driveway sealing. According to the CCR's we ould approval of 51% of the votes of Units subject to jortgages to add any rules wich govern or regulate Assessments or responsiliby for maintenance and repair.

Could you post the section of your CC&Rs that allow you to change responsibility for these things or to change assessments with only 51% of the votes? That doesn't sound right.

For now it sounds to me like your former president is the only one who's doing it right and in accordance with your CC&Rs - for probably the wrong reasons, but there it is.

Your rules do not override the CC&Rs, and if they contradict them, the CC&Rs take precedence unless the CC&Rs explicitly defer to the rules. You must legally amend the CC&Rs to change them, which will involve having a lawyer draft the new language and holding a community vote. CC&R amendments usually require approval of a super-majority of owners (67% or 75% are typical) although some communities in some states do have a lower bar. As I'd said earlier, changing assessments may be one part of amending the CC&Rs that requires unanimous approval because you'd be changing the percentage of ownership for everyone. You need a lawyer if you want to go this route.

Just because you have a good reason to do things your way doesn't mean that it's legal and that you won't be challenged on it. There are many things in condo communities that would be less expensive overall or produce a better outcome if the association took on homeowner responsibilities. We don't do it, though, for a variety of reasons - liability being the big one.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

This is a legal matter but it seems, to me, that the HOA can service and maintain the installations and components on the common property. Whether or not the owner applied his own seal to his assigned driveway is irrelevant to the HOA deciding to service its driveways using an approved vendor and uniform service.

That said, the idea of hiring a sealant company and making it a special assessment is where I raise a red flag. Yes, this is a service provided by the HOA but funding the service should come from operating funds supported by monthly dues and there is no standing for an historical special assessment on a two-year calendar. In this case, the HOA knows its future expenses and won't address it budgetarily.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By KellyM3 on 09/07/2021 8:07 AM
That said, the idea of hiring a sealant company and making it a special assessment is where I raise a red flag. Yes, this is a service provided by the HOA but funding the service should come from operating funds supported by monthly dues and there is no standing for an historical special assessment on a two-year calendar.

If the covenants or bylaws allow special assessments without restriction, there is "standing."

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By KellyM3 on 09/07/2021 8:07 AM
This is a legal matter but it seems, to me, that the HOA can service and maintain the installations and components on the common property. Whether or not the owner applied his own seal to his assigned driveway is irrelevant to the HOA deciding to service its driveways using an approved vendor and uniform service.

That said, the idea of hiring a sealant company and making it a special assessment is where I raise a red flag. Yes, this is a service provided by the HOA but funding the service should come from operating funds supported by monthly dues and there is no standing for an historical special assessment on a two-year calendar. In this case, the HOA knows its future expenses and won't address it budgetarily.

The issue was that, according to the excerpts from the OP's CC&Rs, individual homeowners are responsible for maintaining the limited common elements that service their units, including the driveways. It may make sense for the association to do it as far as total expense and uniform appearance goes, but I don't think that justifies ignoring the CC&Rs. It possibly could make more sense if the driveways serving multiple units in a building form a single large piece of concrete, making the piecemeal approach impractical. But the OP didn't say that was the case (it is the case in my community, and our driveways are defined as common elements).

The real problem is that the OP's board want to go after the one homeowner who actually is complying with the CC&Rs, and I don't see how they can justify that. It's a can of worms. If they're so determined to have the association maintain the driveways, they should amend their CC&Rs to allow it before some of the homeowners actually read their governing documents and say "hey, wait a minute...".

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The more information posted and the more I read. I am changing my mind in that it appears the HO is in the right. My association does all landscaping. We have some owners who have requested we let them do their own. Our reply has been we will continue to do all landscaping but if you wish to add to it, feel free to do so. Also be reminded no changes can be made without BOD approval and we do strive for a common look so please stay within this look.

I am thinking the OP's association might do similar. Let the owner do his own driveway but remind him that it must maintain the common look of other driveways as in material and color. If he asks for a dues reduction for doing his own driveway remind him all owners pay the same dues but do not raise this issue until he does.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By AugustinD on 09/07/2021 8:24 AM

If the covenants or bylaws allow special assessments without restriction, there is "standing."

No matter the covenants, and HOA board that passes a special assessment every two years to cover a planned expense is not operating in good-faith nor budgeting competently. You know that.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By KellyM3 on 09/08/2021 8:14 PM
No matter the covenants, and HOA board that passes a special assessment every two years to cover a planned expense is not operating in good-faith nor budgeting competently. You know that.

In this instance, it's not bad enough faith or incompetence for me to care. But I can understand many reasonable folks like yourself feeling otherwise.

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