Multiple types of assessments

Our community broke ground in 2017 and currently is about 550 homes into our 656 planned. We have single family homes as well as townhomes. The first few years our monthly assessment was $85, which pays for care of the common areas, property manager, etc. It also pays for lawn service for each home - weekly mowing, annual flower be care, etc.

Last year our property manager pointed out that our expense for lawncare at our townhomes was much lower than the expense for single family homes, and that the single assessment fee for all homeowners was not fair and equitable. So we changed our billing to include one assessment for common expenses, and one assessment for lawncare. So for 2022 single family homeowners pay about $95/month, and townhome homeowners pay about $63/month.

A couple of questions. First, while this is certainly fair, how can I be certain it is consistent with our bylaws? In particular, our verbiage relating to assessments states:

"After the first assessment has been made by the Corporation, assessments must be made at least annually to pay the Common Expenses of the Corporation, equally against all Lot Owners"

I think we reasonably say that lawncare for individual homes is not a Common Expense, and since our bylaws do state the association will provide for lawncare ("Provide for the grass cutting of each Lawn Area on a Lot and other maintenance approved by the Executive Board from time to time, if any, to any Lawn Area on a Lot.") we reasonably have a second assessment that is not equal, because the service is not equal. Thoughts?

Assuming what we are doing is okay, I have a second question. Part of our community is a 55+. The younger side has occasional problems with kids trying to break into cars and creating other mischief. They (and the board) want to pay a security company to patrol the streets each night, which would cost about $10/month per home. Those of us on the 55+ don't want that service, and certainly don't want to pay for it. Would it be possible for the HOA to pay for the service to only patrol the younger side, and then assess a separate, dedicated, fee just to that side?

Questions:

* Could you quote the section of your CC&Rs that defines the common elements? Specifically, do the single family home owners actually own their lots?

* Could you quote any section that addresses lawn care? FWIW, there is a community near me where the association does provide basic lawn care for privately owned lots. However, the community consists of single family homes only - there are no townhomes whose owners would be treated unfairly if all owners had to pay equal shares for lawn care.

* Re: hiring private security - why are the 55+ owners opposed to having security patrol their section? Is there some reason that the kids aren't breaking into cars in your area? If the rest of the community has patrols, how likely is it that the troublemakers will target the section of the community that isn't being watched? Would the patrols help discourage other forms of mischief, such as vandalism or theft?

Common Elements (Yes, everyone owns their own lot, including townhomes)
(e) "Common Elements" means and includes the definition thereof as set forth in Section 81-103(8) of the Act and as defined in this Declaration. Specifically, it includes the private open space (including storm water facilities and active and passive recreational facilities) as shown on the Record Plan, and all improvements thereon, subject to any public utility easements now of record or to be given in the future either by the Declarant or the Corporation for sanitary and storm sewer use, water line, electric, telephone and cable television transmission lines and sewage lift stations or other similar necessary or desirable utility functions; and only prior
to acceptance by the Town of Middletown of their dedication for public use, all streets within the Planned Community.

Lawn Care
Under "Powers and Duties" of the directors: (d) Providing for the grass cutting of each Lawn Area on a Lot and other
maintenance approved by the Executive Board from time to time, if any, to any Lawn Area on
a Lot.

Patrols
What has happened appears to be not professional criminals but neighborhood kids out late, messing around at their pool or checking cars that are unlocked or garage doors opened. The 55+ section is physically separated to a degree, and most folks park their cars in their garage. So we haven't seen similar activity. Kids aren't going to walk clear to the other side of the community, where there are maybe one or two cars outside per block, when they see ten or twenty cars outside closer to them.

The attitude on the 55+ side is sort of "Why should I pay because those folks are careless with their cars and can't control their children?"

Thanks for the clarification.

So it does sound like your Declaration (a.k.a. CC&Rs) do state that the association provides lawn care to all lots, and that common expenses are assessed to all owners equally. And does seem like unfair treatment for the townhome owners, although I'm not sure how much leeway you have to address this.

When I was on the board, we would have run this by our attorney (they provided free 15-minute phone calls for questions like this). Communities' governing documents area written by lawyers, often using boilerplate to make sure all necessary items are included and that the wording agrees with state law. Since your community is still under development, I'll assume that your documents do comply with current law.

I'm stumped. Not a satisfying answer, I know...

What LetA said.

In the communities I'm familiar with that have both single-family and attached housing, the entire community is governed by a master association whose common expenses pay for upkeep of community-wide amenities (streets, green space, pool, clubhouse, etc.). Everybody is assessed equally for these expenses. And this assessment does not pay to maintain privately owned items such as individual lots of the single-family homes - it pays for common area only.

In addition, the attached/townhome section is also governed by a sub-association with its own CC&Rs that takes care of the common area surrounding those buildings. These owners pay an additional assessment that goes toward things like lawn care, snow removal, and the like. Owners in this section may own the land under their homes and maybe a few feet out from their units, but this section functions more like a condo/townhome community.

More important, the additional assessment paid by townhome owners only goes toward common expenses in their section - it does not pay for common master association expenses. And vice versa: the master association assessment does not pay for townhome expenses.

I don't know you can treat all owners fairly in a community of this sort unless you separate expenses this way and account for them separately. Add in the complication of making the sub-association a 55+ community that has some unique legal requirements, and you've got a recipe for a mess if you throw everything into one pot. (FWIW, I question the developer's expertise since it appears that he has set the stage for ongoing conflict and problems within DavidG45's community.)

David

Your docs are clear that Annual Assessments (Dues) will be equal per lot. That said, I can understand your landscaping cost per lot varies. In some respects it is like a swimming pool where an owner could say I never use the pool so my dues should be less.

Our Docs call for equal assessments. Our HOA does all landscaping and our lot sizes vary so someone could make a case that landscaping expenses are not equal. As long as our docs call for equal assessments, so be it.

Is there anything anywhere in your declaration or bylaws that says that expenses that benefit fewer than all of the units, including individual units, can be assessed exclusively against the units benefited based on their use and consumption of services?

What are the items that are listed in your Replacement Reserve that future Boards will have to deal with?

Not that I can find.

"The attitude on the 55+ side is sort of "Why should I pay because those folks are careless with their cars and can't control their children?"

From a security company standpoint it's usually all or none when writing HOA patrol contracts unless there are master and sub associations.
I don't know how your community is laid out unlike some of the golf communities here that have multiple sub associations, Sometimes a sub association
will contract out to another security company for extra patrols. Honestly the 55 plus is a more vulnerable population that would benefit from security patrols.

Security patrols don't always keep the schitt heads in check, patrols are there to deter the bad guys from coming on property to do bad things.