A common problem?

Started by ClaudeV • 15 replies • 2037 views

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

⚡ Takes 30 seconds

Already a member? Log in

ClaudeV (Florida)
Posts: 86

Posted:

I have enjoyed these boards as an excellent source of information and advice. I'm hoping this recent revelation within our HOA will generate some advice and simular experiences for resolution:
I suppose Roger will be the one I'm talking to but I'll gladly accept advice or suggestions from anyone.

Our HOA was recently taken over by the owners. It has been a fiasco since day one, MOSTLY because of one or two "rebels" within our community that hate HOA's, (this one anyway), and are determined to make life difficult for our new BOD. Our new BOD are all inexperienced, retired folks with good hearts and just want to be good neighbors.

The center of contention that brings in the MOST heartburn is our retention ponds. We have two. One main and one feeder that is much smaller. The main one is only about an acre in size. The old BOD installed a bubbler fountain to aid in oxygenizing the water. While algae isn't that big of a problem in the larger lake, the shoreline grasses/weeds are. The smaller pond has become a stagnant pool because of a lack of rainfall in our region. That is beyond our control.

Bottomline: Residents that purchased lots on the shoreline of the main lake, and I am one of them, paid much more for their "water front" lots than the interior lots in the community, about 6 to 8 thousand more. The retention pond is just that; a retention pond, required by law, for water drainage during heavy rains. It is NOT intended to be an "astetic beauty mark" in the community.
A few of the residents on the pond have made all kinds of complaints and threats to SUE if something isn't done about the shoreline grasses/weeds. The ones complaining, (I'm NOT one of those), built bulkheads right up to the shoreline or so close that it is impossible to get a backhoe or other suitable equipment in close enough to dredge out the shoreline. 2/3 of the pond CAN be accessed with machinery since the rest of us didn't install bulkheads.
Our BOD members are quitting right and left because of the "threats to sue".
Our fees are set so that no more than a 5% raise can be imposed by the BOD.
The operating funds are collected on a "zero balance" basis, meaning we have no "extra" monies to do the pond as the members wish.
What maintenance IS done to the pond, algae eating fish and cutting of the shoreline to the water's edge, is paid by the BOD as a "common area" maintenance responsibility.

I made a suggestion yesterday to the BOD President, (the temp since the regular one quit after the law suit threat). Since this danged pond is such a bone of contention and there is NO MONEY alloocated for what the members, (all 3 of them), want done, I will make the motion at the next meeting for a special assessment of $50. per owner and an variance on a one time basis, to raise the fees by $15. per month, per unit, to fund the needed pond maintenance. This will require a 2/3 majority approval to accomplish.

It will NEVER PASS...PERIOD! Most of our residents are retired, living on fixed incomes and DO NOT live on the pond. (To bill JUST the pond lots would be cost prohibitive for all concerned...I know...I'm one of them!)

Then, as I see it, the BOD would have done it's job in REQUESTING the membership to fund what was requested, it will be denied, and then the complainers will just have to live with it or move out.

The danged pond is just FINE like it is! It is a "wildlife area" and in the country! It looks like a natural pond SHOULD LOOK! But because it doesn't have that "perfectly manicured look" that many closed, golf course communitie's ponds do...some folks are trying to FORCE the HOA to spend money that it JUST DOESN"T HAVE!
Our "maintenance" fees are only $10. a month. A 5% increase, maximum, amounts to FIFTY CENTS a month! The pond maintenance costs over $4,000. per year! Do the math...it "ain't gonna happen".

Any thoughts?

In all fairness, I should mention that 2 years ago, for the FIRST TIME EVER, while the BOD Prez was STILL the original developer, he used some "excess funds" that had accumulated over a & YEAR PERIOD to have the accessable shoreline of the pond dredged, which was 2/3 of it. That excess money took 7 years to build up. The shoreline was overgrown AGAIN within 9 or 10 months. To do this and MAINTAIN the "clean shoreline", it would take this being done annually with increasing costs each year.

Like I said, the general membership doesn't mind paying our modest fee now, but if it has to be RAISED BY 150% just to APPEASE 3 or 4 members....that will never fly!

Thoughts?

BrianB (California)
Posts: 2,820

Posted:

i would simply have the board declare officially that the ponds are common areas, if that is not already well established.

Then, the board is responsible to maintain those common areas in a manner that does not violate any city, county or state laws. Typically, this means noxious weed laws, and states are pretty lenient on those. You may need to control thistle, or burdock or something, but that's it. Other than that, your board's responsibility is to maintain the area in a manner complying with the law, not a manner complying with golf courses, etc..

And if any homeowner built something that would keep me from maintaining the common property, i would either request it be taken down, or work up to that object and leave the rest to the owner.

let the owners sue, if the board feels they have done a reasonable job. it is not likely that the owner will win, IF the board has done what the by-laws state, and have done a reasonable job.

LindaC3 (Florida)
Posts: 526

Posted:

Good a.m. Claude--- First it would help if I knew where you live.....State wise...It my understanding in Florida and don't quote me as being 100% correct as I have this info second hand being in the construction business.....That retention ponds must be maintained to serve the purpose for which they were designed..... I have seen alot of water catchment basins----Thats the correct term for these things being maintained by HOA's and by cities and counties........You may want to contact your county/city zoning dept as I am pretty sure that there were stipulations given to the developer for maintenance of the basins..I have had clients who thru county regulations actually had to BOND the vegetation that they planted on the ponds edge for 5 years- The county keeps an eye on it and if they find that no maintenance is being done the county comes in and does it and charges the landowner..Just some thoughts and MHO...Hope this helps ??????/ Linda C

RogerB (Colorado)
Posts: 5,067

Posted:

Claude, you do have a problem. Here are some initial thoughts; other posters with experience with retension ponds may have better ideas.

1) I would suggest trying to get the county (or possibly a tax district) to take over maintenance. They may not but worth a try.

2) I would find out if there are any County or State laws which the HOA is violating, if any, if nothing is done to maintain the retention ponds.

3) Perhaps if there is potential of a health problem and and agency with funds available to correct the problem to prevent this.

4)If those efforts failed to resolve the problem I would create a carefully crafted letter to all homeowners. Clearly express the problem, including the threat of a law suit. Advise the owners of potential ways to raise funds to correct the problem. I would prefer the homeowners approve whatever assessment is required (most By-laws allow this by a majority vote at a members meeting) over a special assessment. Providing an estimate of the potential cost of a law suit should awaken the owners to approving whatever it takes to correct the problem. The problem is owned by all not just those ajacent to the pond.

5) If manpower is needed to talk to owners to convince them I would enlist the help of those considering the law suit. They have the most to gain and really don't want to sue. They just don't know what else they can do. When they know the Board is trying to solve the problem it can defuse or delay a suit.

6) Talk to your insurance agent to make sure the HOA is covered in case of a law suit.

7) And to keep Board members from bailing make sure they are protected. While talking to your insurance agent check on your D&O insurance coverage; and check your Articles of Incorporation to assure there is indemnification of all Board members.

HaroldS (Arizona)
Posts: 906

Posted:

I guess I am confused: Why is there water in your retention basin? If there is already water, where does the rain run off go to? You don't say what state you are in, but here in Arizona, retention basins are usually dry.
It is heartbreaking that your developer left you with this mess. He apparently kept the assessment fees deliberately low in order to sell the lots, and now left you with the problems. The only way out is to ignore the maintenance or raise the fees. Here in Arizona we have a similar problem with a lake community which has been maintaining the area around the lake for years, even tho the property owners bordering the lakes owns down to the shore. Now the owners who do not have lake frontage are balking at having to pay for that maintenance. So this is not an uncommon problem. Is the lake accessible to the none lake bordering property owners? If not, then I personally feel those on the lake should foot the bill for maintenance. Harold

ClaudeV (Florida)
Posts: 86

Posted:

Thank You all for the responses so far. We are in NE Florida, St Johns County.
Retention ponds...there are probably 10,000 or more around Jacksonville to St Augustine.
Ours was man made about 8 years ago and was 20 ft deep when dug. The smaller pond is connected to the larger one via underground piping. When the smaller or larger fills, they drain into one another, (water seeks it's own level) and there is an overflow point where the water goes into the storm drain system to a larger ditch and into the St Johns River about 1/4 mile away. The system, as I unerstand it, was mandated by the state/county and installed to their specifications.

The "pond(s)" are ONLY a point of contention to 3 owners out of 9 that live on the pond(s). Everyone else seems to acknowledge that we live in the country and the lake looks perfectly "natural". They don't have a problem with it. (And please keep in mind...the one doing all the "threats" is our resident rebel that would LOVE to BUST the HOA out of existence!)

The points are basically 2:
One - The pond is there for a "purpose"...and taking pretty pictures is not one of them.

Two - If<---(key word), the HOA is all legal with the pond, then shutting down the complaints by demonstrating we don't have the MONEY to make the pond both FUNCTIONAL and "pretty", well perhaps the harassment of our BOD volunteers will stop and then they will stop quitting all the time out of fear!

My intention is to try and handle this in such a way that the issue is put to bed..permanently! I've listened to this garbage for 4 years...first one thing then another about this "pond". It is very frustrating.

We only have 86 owners out of 96 lots. This is a small community but a very nice one. I would hate to see the HOA dissolve and/or become non-functional and the place deteriorate into "just another trailer park" environment.

The suggestions so far are a good starting point. I will pass them along to the BOD member I converse with and she will investigate. Nothing will be proposed or motioned until our next regular member meeting in April, so we have time to do the homework. THANKS ALL!!! Claude :-)

JulieS (Georgia)
Posts: 412

Posted:

Typically there are two types of these "ponds"...detention and retention...detention ponds are where water runs from rain fall and temporarily holds water to drain elsewhere. Retention ponds hold water on a permanent basis. When there is new development, typically the county will require a detention/retention pond of some sort to help in erosion control, water run-off, etc., by the developer. We see this all the time in the Atlanta metro area with all the new subdivisions going in. With the elimination of, and lack of, naturalized areas creates a problem with heavy rains...where is the water to go? Our HOA has three detention areas and we do not do anything with them....they are left as naturalized areas.

LindaC3 (Florida)
Posts: 526

Posted:

Claude- I figured that you had to be in Fla.....I am down in the Okee area and we to are under the rule of St Johns Water Management...... Your "retention" pond may in fact an upland preserve area -- I will see if I can find my contact at St Johns and get back with you..Remember fla has funky rules with regards to upland/wetlands whether man made,created or natural..Have had lots of fun with DEP and clients redigging an old watering hole that the cows used to drink from and now all of a sudden POOF it's wetlands............specially if you have any of those purple prickly flowers and cat tails growing- It's uplands...............If you want you can also contact an enviromentalist in your area and pick his/her brain...They normally will give you lots of free info and I have found in the years dealing with them they are most helpful......Did I read in a prior post that some people had done bulkheads along the shore??? Hope they got a permit for them.......And also you may want to check with the Corps of Engineers in Jacksonville.....Sometimes they can be more accomodating than St Johns...Also St Johns has a web site that you can go for info and a frequently asked questions area ...Keep us informed and I will get back if I can find my contact....Gotta go read up on my first appeals commitee hearing tomorrow afternoon......I've been asked to serve...LOL Later Linda C

ClaudeV (Florida)
Posts: 86

Posted:

Thanks Linda!

We are having our fall meeting tonight. It is being held just before the annual Halloween party for the community kids at a member's house.

I sent the suggestions/advice to our BOD President and spoke with her this morning. We're going to pass on addressing the pond issue this evening since we have more homework to do that may make addressing the issue moot.

There is a very strong possibility that we won't have a quorum tonight anyway and the meeting will not take place officially. Our next meeting is in April. We rent a clubhouse nearby for that one and it is the "main annual" meeting.

I'll post what happens, if anything, later tomorrow.

Thanks again!
Claude
St Augustine, FL

LindaC3 (Florida)
Posts: 526

Posted:

Claude-- What a hoot.....My sister lives in St Augustine and is a Master Gardener and works for the developer of World of Golf Village ............If you need any advice from her let me know and I can get in touch with her...She's the one with the contacts for St Johns and I actually went to high school with one of the Building Dept Inspectors in Lake Worth..Just goes to show ya never know who you're gonna meet in one of these forums....I'm still plugging away on the RV issue here and it's getting hot...This issue has actually opened up a whole can of worms and just continues to grow--- Too funny...Have a good time tonite.......BBBEEEEEWITCHING............Diva

ClaudeV (Florida)
Posts: 86

Posted:

Linda,

Thanks! Good luck tonight! he..he..he

Any help I can solicit, I'll take it! I'm just an old, retired sailor that relies on commonsense to handle most situations.

Speaking of RV storage:

Last year our BOD Prez, (also our developer & a owner), sold two of the last remaining lots to a gentleman that lives in a high end golf club community up near Jacksonville. The HOA in HIS community wouldn't allow his motorhome to be stored on his property in their community...SO...he bought the two lots from our developer and had TWO HUGE barn type garages built - one on each lot. They have TWO roll up doors each, (4 in total). There are FOUR bays for motorhomes. The fellow is keeping his motorhome in one of them along with, what he said, was his "mother's". The other two have motorhomes in them also! THEY belong to a couple of other people from his community that also needed a storage place. He rents the space to them to help pay for the lots and buildings. He has "said" that he is going to put some rental homes on the lots with the garages, but it's been a year now and he hasn't done so yet! He recieved an "extention" from the developer, whom happened to be the BOD Prez at the time.

One - His barns look out of place AND he's running a BUSINESS by making rental storage units out of them.
Two - He hasn't built any houses which is required by CC&R's within 6 months...BUT, because our own BOD Prez gave him "permission" for an extention, we feel we're hamstrung by that.

Just comparing your situation to ours with RV's/motorhomes etc. It seems every HOA has run across this at one time or another. What this guy is doing IS a "technical" violation, but not one we wish to pursue since his business is "invisible" like a home office...except for the MONSTEROUS BUILDINGS!..and no homes yet. BUt it the homes get in place, THEN we'll have more renters...so it's a trade off I suppose since no homes mean no renters.

And YES...many of us feel that what the Prez did was WRONG! It was a conflict of interest. As BOD Prez, he KNEW what the use of the garages was going to be in advance, ie a business, and he approved everything in spite of that. (He bypassed the regular ARC members since he was the chairman of the ARC committee too!) We believe he did it to sell those lots that were in an undesirable location for owner's homes. PROVING that he "knew" is another matter. We live with this, but it is still a bad tatste in our mouths because of it. The soap opera goes on....Happy Halloween!

And BTW: I sold my motorcycle..it was #7. Too old for the iron butt now! LOL

WilliamT (Arizona)
Posts: 489

Posted:

Claude,

Two barns with 4 huge roll up doors built for the obvious purpose of housing 4 motor homes is not an invisible business. A storage facility for 4 motor homes is extremely visible and against the letter and intent of any residential community CC&R that has a no-business covenent.

It's a blatant violation, and the "board" should not allow it. The architectural committee may have permitted it, and they were out of order by permitting the structure in the first place. The board of directors is the appeal process when the architectural committee does something wrong, and they should have stopped it. If the rest of the board is rubber stamping the president on this issue, then you need a complete new board, and you also need to go outside the community for help.

I would bet that the barns are a violation of all the local building codes, and against the local business ordinances for where a motor home storage business can be located and operated.

In a resicential community the local codes should not permit a two motor home storage facility to be built on a residential lot without issuing a variance. In order to issue a variance the building dept would have been required to send out letters to all neighbors stating their intent to issue a variance and naming a date and time for all neighbors to espress their objection in person or in writing.

I would study the architectural guidelines, the CC&R's, and consult with the county an/or city building department to see if the structures were built by permit and if they meet local codes.

If local codes and building permits were violated, then petition the local jurisdiction to have the buildings removed.

I would also check with the local business license office to see what licenses are required for operating a motor vehicle storage facility, and where they may and may not be located, and check to see if he has such a license. Have them show you the licensing requirements to operate a motor home storage facility.

If this happened in my community I would exhaust every avenue with the local authorities until they ordered the illegal facilities to be torn down.

Personally, I don't think a motor home storage business in a residential community is better than rentals. Renters can be good community citizens if they are made welcome by the community. And they should be made welcome instead of being treated as second class citizens.

If I drove through your community looking for a home to buy, I would not know what homes had renters, and quite frankly I wouldn't care. I would look to see how well the community was kept up.

But I sure would see those 2 motor home storage facilities, and that would turn me away immediately. The reasons are simple:

1. A motor home storage facility is a commercial business that has no place in a planned residential community. People live in planned communities to prevent such a thing from happening next door to them. These storage buildings can only serve to drive the value of the property downward. Note that the owners of those vehicles do not live in the community, so they don't care about it. They only want a safe place to store their motor homes.

2. It would tell me that the BOD of this community is not doing their job, and I would not want to live in a community where a BOD would allow such monstrocities to be built on two residential lots. In fact I would probably be thinking to myself that someone must have been paid off in order to allow this to happen.

The BOD was negligent in their duties and can actually be sued for allowing a commercial motor home storage facility to be built there. It would only take a few home appraisals by different appraisal companies who would state that these homes are less valuable than a comparable home in a nearby neighborhood to convince a judge that your property values had been lowered by a given amount.

Each director that was on the board and voted for this thing to happen should be sued individually for their negligence. That way if the HOA insurance agrees that the BOD were negligent then they will not cover the directors and the insurance rate for the HOA will not go up. In this case, the HOA should not be sued. It is the individual directors that were negligent and the HOA is not required to defend them if they are found to be negligent.

So I definately would not move into that community.

ClaudeV (Florida)
Posts: 86

Posted:

WilliamT,

What got all this mess started, and completed, was the fact that the BOD President, ARC committee chairman and the developer were, at the time, ONE AND THE SAME PERSON! The other board members at the time were his daughter and wife. Go figure!

The community has 2 of the RV "carport" type covers for motorhomes that were built as those homes were installed.
I might add, all structures, including the barns, were built to code by licensed contractors with building permits issued by the county.

I am also just as certain that the Barns were NEVER listed as a "commercial venture" for the county building permit office! The homes this owner was "supposedly" to place on the lots have yet to "appear". Those two homes would be rentals with the owner NEVER intending to live in them...again...a "business". Since he stated that he was "going to" put homes on the lots, I'm certain the barns were portrayed as "garages" for those houses. Garages ARE allowed. But THIS situation is an OBVIOUS manipulation of the CC&R's not to mention the zoning in the county! The developer and the owner, I personally believe, rationalized the CC&R's in order for the developer to sell two otherwise undesirable lots and make his money off of them. Of course...PROVING "intent" is all but impossible. The developer is out of the picture now except as another "owner" like anyother HOA member. He has distanced himself from all the residents and the HOA since he was replaced by our last annual meeting and a new owner board was elected. He still lives on a street in the developement...HOWEVER...when he platted the community with the county, he made certain that HIS property was EXCLUDED from the platted community so his own private residence wouldn't come under the HOA's CC&R's. Slick...eh? (He lives directly across from the barns.)

Our CC&R's allow an owner to rent their homes. It was our understanding that the spirit and intent of this was in the event a person had to move or vacate for some unforeseen reason and wanted to keep the property as a rental. We NEVER imagined that our developer would consider selling lots as "strickly rentals", which is EXACTLY what he did for the barns and the yet to be sited homes that are REQUIRED to be in place on those lots.

It is up to the board to take this for action. Since we have no money for attorneys and these are just regular folks that have never been in an HOA, let alone on a BOD before....I doubt they will act aggressively. Personally, I would like to hear what an attorney would have to say about this but being disabled and unable to work...my funds prohibit my hiring one by myself.

Yes...It IS a "mess"!

ClaudeV (Florida)
Posts: 86

Posted:

AND...we had our fall member's meeting this evening. Only 12 showed up of the 28 needed for a 1/3 quorum so we dismissed until the April meeting. The April meeting typically has 2/3 show for it.

All these "problems" will be throughly researched in the coming months and definitive proposals and/or BOD action for solutions will be announced at that meeting. I predict many will be pretty upset. (Especially "Mr. RV Barns"!) Add to him the lake rebels. Hopefully a few FOR SALE signs will spring up overnight after the meeting!

One can only hope and pray!

RogerB (Colorado)
Posts: 5,067

Posted:

Claude, for your next members meeting add to the notice of meeting there will be a motion made to amend the By-laws regarding the quorum requirement. Propose a change from 1/3 to either 10% or 15% of the members in good standing.

WilliamT (Arizona)
Posts: 489

Posted:

Claude,

You said you cannot afford a law suit, but since this was a case where the developer/president/ARC was all one person, it appears as if he acted negligently and the HOA can sue him personally.) But there is leg work to be done first.

You should get several concerned people to help you research the local government records regarding several issues.

1. The CC&R's regarding what can be built on a lot in the community.

2. The architectural guidelines that spell out the requirements for each building.

3. The architectural review committee approval papers of the two port mobile home garages.

4. A copy of the plans and all documents the ARC used to make their approval. (Even though there was only one person who did this, the documents must have been properly prepared, and you are entitled to a copy of them. If they cannot be located, then that is in your favor.)

5. The issuance of the building permit for each of the two mobile home storage facilities. The plans for the home should have been included. I cannot envision that a planning commission would have approve plans to place a two port mobile home garage on a property without plans for a residence, and since I don't believe a two port mobile home storage facility would qualify for a normal residence garaged, there would have had to be a variance notification to all of the community members. You need to get copies of the documents the city/county used to issue that permit, and a copy of the approval of the finished building.

6. Get a copy of the business license requirements for mobile home storage.

7. Find out if this storage facility has a business license.

All of this will cost a little time doing the research and leg work, and perhaps some small fees for the government agency to issue copies of the documents.

Once you can show the governing agencies that this building is illegal, then you just pressure them, and the board to get rid of the buildings.

It will take some time and work, but only a small expense. But it will take work and you need to find people who are willing to do the work, or you may as well just resign yourself to live with the problem.

🎯 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