Georgia deed correction on detention pond?

Started by QtS • 19 replies • 327 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

QtS
Posts: 10

Posted:

The developers filed a transfer of title of tracts of greenspace land (which include detention ponds) to the HOA. A Scrivener's Affidavit was subsequently recorded on the transfer clarifying the tracts in question were previously "dedicated to the city" in the approval from the city on the recorded development plans. The city subsequently/recently passed legislation......

"This provision applies to all future developments/subdivisions, as well as existing developments/subdivisions and whether the City obtained a maintenance obligation by the acceptance of dedication or otherwise, the City hereby abandons, quits, and releases any obligation or expectation to maintain any greenspace, open space, or detention/retention ponds that may exist within said subdivisions/developments. The landowner (developer) during their ownership shall be responsible for maintenance. However, ****AFTER the landowner (developer) has conveyed the open space, green space, and/or detention/retention ponds to the HOA,***** the HOA becomes responsible for the maintenance of the same. Furthermore, notwithstanding any prior accepted dedication to the contrary, from the effective date of the ordinance from which this section is derived forward, the HOA is responsible for the maintenance of open/greenspace, including retention and detention ponds."

The key question here...*****AFTER...

The Scrivener's Affidavit was filed after the transfer. The city's legislation changed after the Scrivener's Affidavit, furthermore to me it addresses their obligation to maintain, but not title ownership. How can they legally enact legislation retroactive to previous recorded documents? How do we approach Deed Correction?

-I am a Board Observer.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Sounds like the homeowners will own the detention ponds once turn over happens. My HOA would love it as they want to change our from retention to detention ponds.

What is the issue? Do not want the ponds?

Former HOA President

QtS
Posts: 10

Posted:

HOA have no interest in owning nor maintaining. Cost prohibitive-wetlands/overgrowth. Not suitable for any land use/development.

QtS
Posts: 10

Posted:

Turn over happened years ago.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By QtS on 03/26/2024 5:04 PM
HOA have no interest in owning nor maintaining. Cost prohibitive-wetlands/overgrowth. Not suitable for any land use/development.

The board needs to consult an attorney who can do the proper research and make an informed opinion.
I would suggest one versed in contract law.

Regardless of the membership interest or not, if the wet lands and storm water management retention ponds were turned over to the HOA, it would be the HOAs responsibilitiy to maintain them properly. Failure to do so can result in having to address issues with both State and Federal agencies.

QtS
Posts: 10

Posted:

Thanks for responding. Key point - if it were turned over. Which as per the deeded recorded Scrivener's Affidavit it could not be turned over by the developer to HOA because it was dedicated to the city under the city approved development plans.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Perhaps.

One would have to look at and read all the associated documents:

PLATS
Deeds
Dates
Filing with the court house (one that is filed may weigh more than one that is not filed)
etc.

QtS
Posts: 10

Posted:

Good approach. Already done. Last filed court document is the Scrivener’s Affidavit clarifying that the developer’s filing to turn over (deed to HOA) could not be done because tracts were previously dedicated to the city under the city’s approval of development.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Sounds like your HOA needs to attend a city meeting to discuss the issue. The city has to be involved and recognize the issue. Are you being fined for bad upkeep or people complaining about paying for the upkeep?

Best to decide now if want to pay city fines and correct or just collect the money needed to fix the issues.

Former HOA President

QtS
Posts: 10

Posted:

Good advice. The community complains to HOA about the lack of maintenance. Overgrowth impeding into backyards. We have been working with the city to resolve for over 9 months now. Initially they agreed to come out to clean up and maintain. They started the cleanup but stopped-council members decided to pass legislation reversing their obligations to OWN/maintain tracts as previously approved by them in development plans. The legislation was voted to be retroactive in nature. How can land ownership be legally transferred without acceptance?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

That would be a question for a real estate lawyer and or the city.

It is either your taxes or HOA dues going to pay for it.

Former HOA President

QtS
Posts: 10

Posted:

An attorney is certainly an option, thanks. Any lead on which authority regulates court records for deeds?

DeanJ
Posts: 1,786

Posted:

Except I question if the city can abandon dedicated infrastructure. If the city can, what would stop the city from turning over dedicated streets and storm sewers too?

QtS
Posts: 10

Posted:

Good point. Seems setting new legislation retroactively should be illegal and at the least against case law, right? Gotta get a lawyer on it and post results here to bring transparency to this type of dispute.

QtS
Posts: 10

Posted:

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By QtS on 03/27/2024 10:45 AM
An attorney is certainly an option, thanks. Any lead on which authority regulates court records for deeds?

Deeds are recorded at your County's Recorder's office. They are not regulated though as people can record what they want.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 04/01/2024 8:37 AM

Deeds are recorded at your County's Recorder's office. They are not regulated though as people can record what they want.

First, not so. In some (all?) states, county clerks do have standards for what they will record. Second in Georgia I expect it is the County Clerk's office that "records" documents pertaining to covenants, deeds, et cetera.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By QtS on 04/01/2024 7:40 AM
Good point. Seems setting new legislation retroactively should be illegal and at the least against case law, right?

It depends entirely on what the statute says. Statutes are amended from time to time. Legislatures can make them retroactive.

Statutes (including their amendments) override long-established HOA covenants all the time.

Example:

In some states, the HOA statute applies only to associations created after a certain date. In other states, the HOA statute applies to all HOAs regardless of the date established, and as long as other criteria are met.

Your specific situation is interesting to me. The essence of what you posted is that the city is suddenly dumping a maintenance responsibility on the HOA. Formerly this maintenance the city's responsibility.

I take it you wanted to get ideas about the legality of this. Due to space limitations, you want people here to do so without all the information that an attorney would insist on having. (Never mind that no one here has passed the bar and practiced HOA law as an attorney.)

This is a tall order. I like the legal questions here, but this one is quite advanced, IMO. I will say that proposed amendments to ordinances are reviewed by city attorneys all the time. I would be surprised if this new city ordinance was not enforceable.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 04/01/2024 11:04 AM

Posted By TerriS6 on 04/01/2024 8:37 AM

Deeds are recorded at your County's Recorder's office. They are not regulated though as people can record what they want.

In California, the Clerk and Recorder are usually the same office/department.

QtS
Posts: 10

Posted:

You have captured the essence of the post correctly. And yes, I am trying to get an opinion of the legality. Thanks for your opinion! Stay tuned will post updates.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here