Removing one common element.

LetA (Nevada)
Posts: 2,679

Posted:

We have a horseshoe pit that nobody has used in the 16 years since the HOA was built. There are residents that would like to see the area
turned into a fenced-in dog run. Would we need to amend or put to a vote to the entire owners to bull doze the horseshoe pit and replace it
with a dog run?

Also, we have another common element that is just a lot with some shrubs, pea gravel for a walking path and a pet relief station. If we were to fence off a portion
of that lot. would we need to put it to a vote?

As a side note, in my opinion, the lot with the horseshoe pit would need a bulldozer to grade the lot more level.
The lot with just the bushes and pet relief station is flat and level.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Why would you not put it to a membership vote? It's their money. That deserves a vote. Plus need to vote if the change will effect your rules. Is the "pit" mentioned in the rules?

A pet station sounds good but realize rules will need to be created/enforced. There is a line in telling someone to pick up their dog poop and having a dog fight. My opinion is that HOA's are NOT in the Pet business. Animal control is. Be prepared if someone gets bit they may be looking for the HOA to pay out...

Former HOA President

MichaelS56 (Minnesota)
Posts: 859

Posted:

Thoughtful answer Melissa. Also please contact your Association master insurance agent to find out any association liability for a dog park.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Probably should run these ideas past the association attorney before you get much further down the line since that person would have to be involved in writing amendments anyway.

Is this horseshoe pit defined as a common element in your CC&Rs? If so, then yes you'd need an amendment to the CC&Rs that is approved by the majority of your voting interests (probably a super-majority, check your CC&Rs to see what they say about amendments of this type). I agree with having a community poll to see what people think first - you don't want to spend money on having the lawyer draft an amendment, only to have to membership say "nope".

Ditto with fencing off a portion of the lot. Typically CC&Rs will say that all owners have the right to use all of the common elements, so fencing off a portion would be taking something away from them. That's potentially an issue and I'd want a legal opinion on it first. IF the lawyer says OK, then proceed as above.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, get your HOA attorney's opinion first. And then a poll of owners.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

My HOA spent $20K to make a picnic shelter and no one voted on it
My HOA spent $35K on a new playground set that they told the community would only cost $10K and no one voted on it.
Both of the above were done by board members that lived right next to the proposed improvements.
Both of the above I disagree with, the membership should of voted on it.

I see no need for a lawyer, just get the right insurance and have sensible rules.

Unless this horsehoe pit is gigantic then a skid steer for $250 rental a day would be the right piece of equipment not a bulldozer which is a lot more powerfull and is used to grade much larger land areas.

vis ta vie

LetA (Nevada)
Posts: 2,679

Posted:

Thoughtful replies, Thank You. As for the horseshoe pit, who would miss it! LOL

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By LetA on 07/21/2023 5:18 PM
Thoughtful replies, Thank You. As for the horseshoe pit, who would miss it! LOL

An abandoned amenity is not missed, is not used and is technically an "eyesore" that diminishes the property's appeal. I've converted our community tennis court (abandoned and dilapidated from the 80s) into a dog park with nice success and community support.

I'd certainly gauge community interest.
I'd certainly ensure the budget situation and possibly vote to swap out "horseshoe pit" for a "dog park" in any Reserve Fund list.
I'd certainly ask the insurance company (but dog parks are high liability as dogs have owners who are liable).
I'd certainly ask your town parks department/Animal Control if it has a dog parks and what are those rules (copy them).
I'd certainly find a tree company willing to dump freshly ground wood chips to load in the park as the "ground," if needed.

The board of directors can approve this project.

With a decent sense of community support and grip on the budget, you'll add value.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Correction: Dog parks are lower liability that you'd expect as, in many states, a dog is private property of the owner and the owner is liable for the dog's behavior

ND (PA)
Posts: 792

Posted:

Quote:

Posted By KellyM3 on 07/23/2023 4:15 PM
Correction: Dog parks are lower liability that you'd expect as, in many states, a dog is private property of the owner and the owner is liable for the dog's behavior

But a dog park would be increased liability than no dog park at all, right? Further (although I have no experience in this), I'd assume that having an HOA-built dog park would generate additional liability on part of HOA since rather than just the ability of dogs to go randomly throughout the neighborhood to any and all property and behave as they would (as solely the dog owner's liability), they instead would be more concentrated in a dedicated HOA common area space whereupon the HOA as a whole entity has liability/responsiblity.

That said, in regard to the OPs initial questions/thoughts ...

What you're proposing is more than just removal of one common element. You want to remove an element, replace it with a new element, and also add another element somewhere else.

- A quick poll of the community about removing the horseshoe pit makes sense to me. You say nobody has used it in 16 years, but you can't be certain unless you've visited daily and confirmed no use. And (IMO) you can't just remove something that is an existing part of the neighborhood without ensuring that nobody will miss it. If nobody opposes the removal, then a small, one-time cost to have pits removed and the land blended in with surroundings is likely within budget and reasonable. The whole "bull-dozing" is questionable though as that is likely more part of you larger dog park idea.
- The dog park and other fenced area would have to be run by the community for support and monetary buy-in (IMO). Since you're adding amenities, you have to consider cost to install, then cost to maintain & repair, and then eventual cost to replace. The projects are quite a bit more involved than the "pro dog park" neighbors agreeing that it's a good idea and then moving forward with things.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ND on 07/24/2023 10:56 AM
But a dog park would be increased liability than no dog park at all, right? Further (although I have no experience in this), I'd assume that having an HOA-built dog park would generate additional liability on part of HOA since rather than just the ability of dogs to go randomly throughout the neighborhood to any and all property and behave as they would (as solely the dog owner's liability), they instead would be more concentrated in a dedicated HOA common area space whereupon the HOA as a whole entity has liability/responsiblity.

I have concluded that for me, it's five will get you ten. For example, assume no dog park exists. One director is aware that one of the owner's dogs snapped at a person, on one occasion, because of an email exchange. Sometime later this same dog sinks its teeth into another owner's flesh. Also the HOA has a leash rule but no muzzle rule for owners walking their dogs. Who is the owner going to go after?

I opine: Whoever has the best insurance and the deepest pockets.

To me, it's long been less about liability than it is about both sides, plus all involved insurers, wanting to avoid the expense of testing out a given situation in court.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By ND on 07/24/2023 10:56 AM

Posted By KellyM3 on 07/23/2023 4:15 PM
Correction: Dog parks are lower liability that you'd expect as, in many states, a dog is private property of the owner and the owner is liable for the dog's behavior

But a dog park would be increased liability than no dog park at all, right? Further (although I have no experience in this), I'd assume that having an HOA-built dog park would generate additional liability on part of HOA since rather than just the ability of dogs to go randomly throughout the neighborhood to any and all property and behave as they would (as solely the dog owner's liability), they instead would be more concentrated in a dedicated HOA common area space whereupon the HOA as a whole entity has liability/responsiblity.

That said, in regard to the OPs initial questions/thoughts ...

What you're proposing is more than just removal of one common element. You want to remove an element, replace it with a new element, and also add another element somewhere else.

- A quick poll of the community about removing the horseshoe pit makes sense to me. You say nobody has used it in 16 years, but you can't be certain unless you've visited daily and confirmed no use. And (IMO) you can't just remove something that is an existing part of the neighborhood without ensuring that nobody will miss it. If nobody opposes the removal, then a small, one-time cost to have pits removed and the land blended in with surroundings is likely within budget and reasonable. The whole "bull-dozing" is questionable though as that is likely more part of you larger dog park idea.
- The dog park and other fenced area would have to be run by the community for support and monetary buy-in (IMO). Since you're adding amenities, you have to consider cost to install, then cost to maintain & repair, and then eventual cost to replace. The projects are quite a bit more involved than the "pro dog park" neighbors agreeing that it's a good idea and then moving forward with things.

Actually, our community dog park did not increase our liability insurance premiums at all. We were transparent. The insurer asked that we post signage that matches, rule for rule, area public dog parks. Dog bite rules here are that a dog owner is ultimately responsible for dog bites and attacks.

ND (PA)
Posts: 792

Posted:

Quote:

Posted By KellyM3 on 07/24/2023 9:39 PM

Posted By ND on 07/24/2023 10:56 AM
...

Actually, our community dog park did not increase our liability insurance premiums at all. We were transparent. The insurer asked that we post signage that matches, rule for rule, area public dog parks. Dog bite rules here are that a dog owner is ultimately responsible for dog bites and attacks.

In my post, I wasn't necessarily referencing insurance, but rather overall risk/liability of installing an HOA-funded/sponsored dog park on HOA common space where a dog park did not previously exist.

I feel (and again no professional expertise/experience) that by building a common element which intentionally brings numerous dogs and owners together in a likely leash-free area will increase risk/likelihood of some negative event as compared to status quo with no dog park.

Agree that there should be little to no change in insurance premiums with installation of a dog park; however, when installed, you then have greater risk/likelihood of a negative event and thus increased liability. And by advocating for dogs and people to increasingly come together (by building a dog park), the HOA is then an obvious and likely target (with deep pockets) if something goes awry. I say, unless a dog park was an original and known common element in the HOA, then leave it up to local municipalities, towns, cities to sponsor and build these sorts of things. But if an HOA chooses to install one later, then most/all owners need to buy-in to it and understand costs and possible risks/repercussions.

ND (PA)
Posts: 792

Posted:

Quote:

Posted By KellyM3 on 07/24/2023 9:39 PM

Posted By ND on 07/24/2023 10:56 AM

Posted By KellyM3 on 07/23/2023 4:15 PM
Correction: Dog parks are lower liability that you'd expect as, in many states, a dog is private property of the owner and the owner is liable for the dog's behavior

But a dog park would be increased liability than no dog park at all, right? Further (although I have no experience in this), I'd assume that having an HOA-built dog park would generate additional liability on part of HOA since rather than just the ability of dogs to go randomly throughout the neighborhood to any and all property and behave as they would (as solely the dog owner's liability), they instead would be more concentrated in a dedicated HOA common area space whereupon the HOA as a whole entity has liability/responsiblity.

That said, in regard to the OPs initial questions/thoughts ...

What you're proposing is more than just removal of one common element. You want to remove an element, replace it with a new element, and also add another element somewhere else.

- A quick poll of the community about removing the horseshoe pit makes sense to me. You say nobody has used it in 16 years, but you can't be certain unless you've visited daily and confirmed no use. And (IMO) you can't just remove something that is an existing part of the neighborhood without ensuring that nobody will miss it. If nobody opposes the removal, then a small, one-time cost to have pits removed and the land blended in with surroundings is likely within budget and reasonable. The whole "bull-dozing" is questionable though as that is likely more part of you larger dog park idea.
- The dog park and other fenced area would have to be run by the community for support and monetary buy-in (IMO). Since you're adding amenities, you have to consider cost to install, then cost to maintain & repair, and then eventual cost to replace. The projects are quite a bit more involved than the "pro dog park" neighbors agreeing that it's a good idea and then moving forward with things.

Actually, our community dog park did not increase our liability insurance premiums at all. We were transparent. The insurer asked that we post signage that matches, rule for rule, area public dog parks. Dog bite rules here are that a dog owner is ultimately responsible for dog bites and attacks.

In my post, I wasn't necessarily referencing insurance, but rather overall risk/liability of installing an HOA-funded/sponsored dog park on HOA common space where a dog park did not previously exist.

I feel (and again no professional expertise/experience) that by building a common element which intentionally brings numerous dogs and owners together in a likely leash-free area will increase risk/likelihood of some negative event as compared to status quo with no dog park.

Agree that there should be little to no change in insurance premiums with installation of a dog park; however, when installed, you then have greater risk/likelihood of a negative event and thus increased liability. And by advocating for dogs and people to increasingly come together (by building a dog park), the HOA is then an obvious and likely target (with deep pockets) if something goes awry. I say, unless a dog park was an original and known common element in the HOA, then leave it up to local municipalities, towns, cities to sponsor and build these sorts of things. But if an HOA chooses to install one later, then most/all owners need to buy-in to it and understand costs and possible risks/repercussions.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By LetA on 07/20/2023 4:35 PM
We have a horseshoe pit that nobody has used in the 16 years since the HOA was built. There are residents that would like to see the area turned into a fenced-in dog run. Would we need to amend or put to a vote to the entire owners to bull doze the horseshoe pit and replace it with a dog run?

I have landed on the side of the HOA having to go through the amendment process, unfortunately. Fencing in part of the common area, such that dogs will be there, either somewhat or fully denies owners, especially owners who do not have dogs, the use and enjoyment of this common area. This should not happen without an owners' vote. Hopefully no one feels strongly on the point. But one or more owners may. Whence things could go legal, as in 100% consent might be needed.

I remain unconvinced that the liability risk rises by having a dog run. I could argue it declines, as people are more on the alert. Municipally-maintained dog runs are common as well, and I just do not hear chatter by city councils or county commissions to shut down these dog runs.

ElleN (Idaho)
Posts: 4,420

Posted:

... as CathyA3 pointed out (regarding denying some owners use of the common area).

TimB4 (Tennessee)
Posts: 21,059

Posted:

Like it or not, the Board typically has full control over common areas.

Some governing documents do require membership approval prior to adding or removing amenities.
Therefore, I would urge you to initially check your governing documents first.

Even though the Board has full authority over common areas, it isn't a bad idea to poll the membership first. Why make changes if a majority of the members are not behind it.
I would get proposals to do what you propose (for both areas).
Then present the findings to the membership and ask for their input.

Example:
Option A: Make a dog park/run in place of the horseshoe pits at a cost of $$$ plus an estimated annual maintenance and reserve contribution of $$$
Option B: Make a dog park/run by the pet relief area at a cost of $$$ and an estimated annual maintenance and reserve contribution of $$$
Option C: Board should do both options A and B
Option D: Board should do neither option

Additionally, the board should run the numbers and identify how large of an increase in annual assessments each option would require and include that in the survey so everyone (including the Board) can make an informed decision.

KathyF13 (Florida)
Posts: 31

Posted:

Agreed

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TimB4 on 07/25/2023 10:17 AM
Like it or not, the Board typically has full control over common areas.

They have full control over making reasonable rules for the use of the common area. The board does not have the legal authority to permit say exactly one owner to put a storage shed on the common area; sell off common area; and many other things.

TimB4 (Tennessee)
Posts: 21,059

Posted:

They likely do have that authority.
This can be done by renting or selling the land to that individual.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TimB4 on 07/25/2023 11:01 AM
They likely do have that authority.
This can be done by renting or selling the land to that individual.

And you feel this way despite knowing (I presume) that the plats are normally a part of the declaration, and hence an amendment of the plats denotes an amendment of the declaration, which of course requires, in every case I have seen, a super-majority of the owners to approve. Interesting. I agree to disagree.

I guess it is off to the attorney the OP's board shall go.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I have seen many, many governing documents that give the board the right to sell or rent common area/elements.

I have never seen any Declaration that dictates PLATS are part of them.
They may very well exist.
I have never seen it.

Therefore, I agree - we will have to agree to disagree.