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Developer and the Roads

Started by DeidraR • 22 replies • 2250 views

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DeidraR (Mississippi)
Posts: 2
Posted:
Our subdivision has discussed having our front entrance gated for years now. Some want it and some do not. Some built there thinking it was going to be gated. The infrastructure for the gate was put it by the developer. The last meeting we had it was decided to get more information as to how much a gate would cost. During this process the Developer calls the President of the HOA and says he wants the roads turned over to the Association ASAP. It has since been discovered that the roads were dedicated for public use when the plat was recorded which is what our covenants state was supposed to take place. But at that time the Developer did not turn over the maintenance to the County for whatever reason. So now the Developer's attorney has sent an amended copy of the covenants deeding the roads to the association. Can this happen? I know more will be needed, but this seemed like a lot of info to start with. The HOA does have an attorney but I was just curious as to what some of you might have to say about it.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Gates bleed money. Just you wait and see....
RogerB (Colorado)
Posts: 5,067
Posted:
Deidra, To whom were the roads dedicated? Check with your County to see if they have accepted the dedication of the roads. If it is a public road you can not put up a gate. If the road is still private I recommend you try to get the County to take over maintenance unless the homeowner want to incur the major expenses involved in maintaining private roads. FYI, the cost of a gate is a minor part of the expenses and other problems involved with private roads.
DeidraR (Mississippi)
Posts: 2
Posted:
The roads were dedicated to the county when the Developer recorded the plat. But he did not dedicate the maintenance. So all along the homeowners thought we owned the roads and it was always a debate whether to keep them private and get a gate or turn them over to the county. But since the county already owns them the gate should be out. But the Developer now wants to change it and deed the roads to the Association so there could be a vote to get a gate or not. My question was whether the Developer can deed them to the Association?
MaryA1 (Arizona)
Posts: 7,043
Posted:
Diedra,

If the roads have been deeded to the Co, the developer will have to ask the CO if they will be willing to deed them over to the assn. I doubt it would be a problem because the cost to maintain roads is very high. Your assn probably isn't that old so there haven't been any maint issues yet. However, when it comes time to do paving and other types of maint then you'll get the picture but it may be too late! In many instances the assn hasn't bothered to adequately fund a reserve so there isn't enough money available to re-pave the roads. When that happens the members will be asked to approve a special assessment which could be several thousand dollars for each member. Now, that's just the roads. I'm told the gates are also a costly feature. They have to be serviced regularly and that isn't cheap. Frankly, if was me I would opt to leave the roads public and also let the Co maintain them. Actually I've never heard of an HOA maintaining public roads, unless a special taxing district has been set up for your HOA to maintain the roads.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Support Mary's comments fully.

Also, didn't the developer have to place a bond with the county re: the roads? You might want to check with the county if there is a bond in place and who is to get the bond once the streets are released.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Deidra,
It appears to me from what is posted you will probably be better served to get the roads declared public once and for all and forget the gate.
One suggestion if you have security concerns for your community and you can define the boundaries, would be to hire a security firm to patrol your area. This could be done if the local police and county would agree. Your hired help would only patrol and report, not investigate or confront or arrest, strictly surveillance.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Robert,

Sorry, Robert, but from what I've heard that may not be a good idea. When the HOA does this they are really telling the members they are in the business of "protecting" them. Therefore, if a crime occurs the member can sue the HOA for not providing them with the proper protection. It's not a good idea for the HOA to set themselves up in this way; that's what the local P.D. is for!

As for gates, IMO, they are a false sense of security. Perhaps fewer home burglaries occur in a gated community but they do occur. Security doors and security systems can protect your home just as well.
DanielH1 (California)
Posts: 482
Posted:
My mother lives in an HOA in a gated community. They also have 24-hour on-site security personnel (several), a manned guard kiosk with crossbars across the road and automatic gates. Professional athletes and TV personalities have homes there. All this for about $400/unit/month.

If you think that you have a chance of doing the same thing, a gated community can really pay off in terms of housing prices and being a nice place to live. BTW, my mother's HOA was ungated for several years before they built a wall around the place and gated it.

Me? I live in an ungated HOA. But there are some HOAs where the gates make a lot of sense.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Mary,
I am sure Mary you have some spcifics in mind and I can see the concern. Like Daniels I live on an island with an HOA that has a Security force that is maned by Professional Security officers redistered by the state, and receive re-certificaion as required. We are behind a gate maned 24/7 and are an island.. That is one thing.
This thread is swpeaking to how can you inure an extra measure of security if your neighborhood is willing to fund it. I am speaking of a hired company that will make a visual statement in the specific neighborhood. These are not enforcement officers, they are not certified by anyone other than the company that hired them to complete a job description. Are you suggesting that just because you have security officer at, say, a golf match, that these security officers were hired to protect you and are liable if someone punches your lights out. All kinds of businesses hire all kinds of people to insure the operation of the endeavor. Security patrols are simple that, they monitor the security of a specified area................ttat's all. There actions are dictated by who hires them.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Robert,

Having a guard at the gate of a gated community and having security personnel patrol the grounds of the community are two different things. The latter is what I was talking about. I know of a case where a member sued the HOA for failing to protect her after she was raped on a common area. The HOA had hired a security guard to patrol the common areas. I can't recall if the guard was off-duty at the time or what but the point is that this HOA set themselves up as being in charge of protecting it's members by hiring security guards to patrol the common areas to keep them safe.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Mary,\I am sure anyone can sue anyone about anything. Just my opinion but I find the rational in your example to be convoluted at best. You seem to be saying the hiring of a security person promotes the commission of rape, And the absence of one results in the absence of rape. If the security guard happened to be the one that committed the crime, that's a different story.

However I see no gain in debating the legalities of your example, or my suggestion. If all you propose here holds true and my suggestion was adopted and a woman got assaulted, then the security person would be guilty, the Board would be guilty, I would be guilty and the site would be guilty. That's a stretch, not that someone couldn't sue.

I believe you have made your point, and I respect that, and the poster can decide if my suggestion is worthy. Your experience with a similar instance deserves consideration. Just my opinion. I would like to point out that the duties you would hire this person to do would really have nothing to do with protection, the job is surveillance and reporting.....nothing more.
GlenL (Ohio)
Posts: 5,491
Posted:
Robert, I remembered this post from JosephW from a few years ago:
http://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/39796/view/topic/Default.aspx

There's a lot more to the security issue than just the wording of the documents. In CA, a court held the association liable because they had prior knowledge of problems in the area and failed to warn the owners.

If your association is worried about this or want's to get into it in any way, be prepared some spend some good money on an attorney. They're going to have to look at whether the original declarant (developer) actually promised or implied that the gates provided security (did the buyers have a reason to believe they were more secure). What has been said or done since. How will changes to the docs impact your liability insurance? Are there are other court precedents regarding security and and association in Florida, etc. etc. etc.

Here's a case out of NJ: http://www.njlawblog.com/2006/06/articles/community-associations/new-jersey-legal-update-podcast-36/

One out of AZ: http://lw.bna.com/lw/19970715/960494.htm

Here's one from your state: http://www.advancedproperty.org/apm_HOAinfo.html

There's issues you can skimp on and skate by - this isn't one of them.

Joe
Studies show that 5 out of 4 people have problems with fractions
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Glen,
I am at a disadvantage, I can't remember what I said two hours ago, you can remember what someone else said several years ago, and if I cross Mary, she will beat the crap out of me.
However, I have got this far being dumb, so mayhbe I'll get lucky again. I still say what I am proposing carries no more liability than a neighborhood watch association and we have all seen plenty of them. As I understand it, neighbors agree to report suspecious obsrvations occuring in the designatged area to the Police. Same thing only you hire someone to do it for ytou.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Glen,

Since I posted my remarks to Robert, I've been doing more research and came across an article written by a well-respected HOA attorney in the Phx area. The Martinez case (referenced in your reply), which occurred in 1996, was actually the reason for the article. Apparently this case caused quite an uproar within HOA communities. The bottom line is that assns should NOT misrepresent the level of security that exists and should notify residents if problems occur. HOA attorneys recommended that assn boards take steps such as adding electronic gates or surveilance cameras or use security patrols and screen employees for criminal records. The consensus was that the BOD should NOT give the impression that the HOA is offering absolute protection but are taking steps to afford some protection. The BOD must always inform the members of exactly what security measures are being taken and if any problems develop they should notify the members that they should take steps to protect themselves and the BOD should never reduce security without allowing the members to vote on it. From reading the article the impression I get is that the HOA should take measures to maintain a level of security on their common areas but should not give the impression that they are the absolute level of security for the members living in the HOA. If problems arise the members need to take measures to protect themselves also.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Glen,
Comment if you will.
After reading Mary's last and trying to differentiate between condo and HOA as far as common property is concerned and then also equate all this to an Hoa that doesn't own the roads or control access to the community, then trying to apply JoeW's old post, I conclude I can't dream up anything that fits everything. I really think we are in a corner about this and maybe the discussion is the thing we can contribute.

But, and this is coincidental, we should maybe mention this neighborhood watch program as something any association should consider, whether with signs or an active committee.

I can hear the response around here from our absentee owners (not all, CYA).
Some will say they think it is tacky to have such signs posted as it indicates we have a security problem. Fuji says, OL Vey!
GlenL (Ohio)
Posts: 5,491
Posted:
Robert what Mary was attempting to point out (I assume) was that gates give a false sense of security. Yes, they will stop unwanted persons from driving onto the property but they won’t keep a determined thief, mugger, rapist out; those people can simply climb over, go around or tunnel under to gain access to the property.

If the HOA touts itself as being safe because of a gate or a guard at the gate and it lulls the members into a false sense of security and something bad happens there is case law to show the HOA culpable and it could end up costing everyone. Our condo buildings have locked front doors and a door buzzer, but we still tell homeowners to lock their individual unit doors and check before they open their doors to someone who knocks because the system isn’t foolproof. The same would apply to a homeowner who left their doors unlocked or walked the common areas in a HOA thinking they were secure.
Studies show that 5 out of 4 people have problems with fractions
MaryA1 (Arizona)
Posts: 7,043
Posted:
Thank you, Glen. Maybe I should let you post my messages for me!
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Glen,
I think I get that part and I can understand about touting something you can't provide. But gates work (maned or unmanned) in many communities. The tout thing would cover security personnel if you claim they make the area safe. On the other hand, the presence of a Police Force, be it public or private, serves to deter criminal activity. That should not seem odd to anyone, every ten store town has a sheriff or something, but they don't make Billboards that say the area is safe. Regards an HOA and knowing what we know about the developer using the documents to promote sales and he adds all kind of stuff in them, then, he turns the development over to the owners, are they bound and liable for what he wrote. When he turns over the documents there are many things that don't fit and lots of time they just lay there for years. ignored. I certainly am not questioning the case law as it was cited, no doubt it is factual, it may help to actually know more about the circumstances resulting in this ruling.

Bottom line, I do not think associations are smart promoting something they can't deliver, be it protection from criminal acts or a world class gym facility.

Our gate is very effective, it is manned 24/7 and sits at the end of a 1/2 mile bridge over water. But we have traffic all day and night and who knows is in the cars. Our security carries arms, is SLED certified, can make arrests and detain for the county police, can testify in court and can issue warnings and cite speeders with a $ fine and an invitation to appear before a citizens panel. Anyone can appeal anything they want and anyone has a right to sue anyone.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Mary,
No way am I taking on you and Glen. Glen has described his seccurity measures. I aqm sure you have yours, and I explained the gate here. But tell me, how does all these things protect us from someone that wants to sue, or someone wanting to sue a police department or a sheriffs office? Far as I can see, it doesn't, but, that don't mean you can't be charged by the courts for something we didn't do, or did do and it was wrong.

We had a guy go out at midnight, walk out on a pitch black crossover, said he fell and hurt his back, no report, no wittnesses (a lawyer in fact), several days latter he sued the Regime, several months later, I was called to give a deposition about the maintenance that I did on crossover. I had always made reports on everything I did, blah, blah. They also took depositions from manager and God kows who else. Had court hearing, our insurance company settled out of court for some small sum. End of story. I doubt that is case law, but it was a court that approved the settlement.
My wife picked the Derby winner, my horse came in second...........not bad........but I didn't win.
GlenL (Ohio)
Posts: 5,491
Posted:
Quote:
Posted By RobertR1 on 05/01/2010 5:35 PM
But tell me, how does all these things protect us from someone that wants to sue, or someone wanting to sue a police department or a sheriffs office?

Robert, the police have an out, HOA's don't.
http://www.nytimes.com/2005/06/28/politics/28scotus.html
Studies show that 5 out of 4 people have problems with fractions
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Glen,
Let me say this: I read the times article and I just can't see how this narrow ruling by the supreme court damns HOA's to provide any more protection than a police department under a court order to protect a person from another single person. You can't mean that the HOA's are under some kind of blanket constitutional demand that requires them to provide absolute safety of EVERYONE that happens to walk unto the property.It seems to me that the Police officers have a greater burden to protect than a lessor burden when compared with others out side the police force.
I can agree the association should not make false claims or impressions, I think that would violate the law, I certinly do not believe if the developer has control of the association and he would present the association and make false claims of providing protection, all the members of the association could be charged.
As you can see from reading the article it addressed very narrow confines of the case. In this case the court ruled the police had no constitutional requirement to protect.
It did not maked them exempt from a constitutional responsibility to provide protection in all matters. But even if it did, it certainly didn't direct that HOAs, therefore, because of their ruling are henceforth resonsible for the complete safety of the property. Certainly the association is liable for the proper maintenance of operation and the physical propety owned by the association and they don't have to claim their protection publicly, they are responsible. If they are using their responsibilitikes to falsely represent their authority, they are placing the association in harms way. That seems to be he crux of what we are talking about.
Enough said for me.
GlenL (Ohio)
Posts: 5,491
Posted:
Robert, what I meant was regardless of the fact that many police agencies have the words “To protect and Serve” on their vehicles the Supreme Court has ruled they actually have no duty to protect. Whereas there is ample case law to hold HOA’s to a much stricter standard IF they have held themselves out to be “safe”. I do agree with you that we have hijacked the thread long enough from the OP’s original question of:

Quote:
Posted By DeidraR on 04/29/2010 8:54 AM
Our subdivision has discussed having our front entrance gated for years now. Some want it and some do not. Some built there thinking it was going to be gated. The infrastructure for the gate was put it by the developer. The last meeting we had it was decided to get more information as to how much a gate would cost. During this process the Developer calls the President of the HOA and says he wants the roads turned over to the Association ASAP. It has since been discovered that the roads were dedicated for public use when the plat was recorded which is what our covenants state was supposed to take place. But at that time the Developer did not turn over the maintenance to the County for whatever reason. So now the Developer's attorney has sent an amended copy of the covenants deeding the roads to the association. Can this happen? I know more will be needed, but this seemed like a lot of info to start with. The HOA does have an attorney but I was just curious as to what some of you might have to say about it.

Studies show that 5 out of 4 people have problems with fractions

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