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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36753
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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I AM BEING ASKED BY THE HOA BOARD TO REMOVE ROCK UTILITY

Customer Question

I AM BEING ASKED BY THE HOA BOARD TO REMOVE "ROCK" UTILITY COVERS THAT I PLACED OVER INCORRECTLY SITUATED UTILITIES- (ACCORDING TO PLOT PLANS). I AM ONE OF TWO PROPERTIES WITH THIS UNIQUE SITUATION, ALL ARE ON PROPERTY LINES, MINE 30FT IN RIGHT IN FRONT OF MY DOORS.   I LOOKED OVER THE CC&Rs, THEY ARE SILENT ON THE ISSUE, EXCEPT FOR SAYING THAT HOMEOWNERS ARE RESPONSIBLE FOR MAINTAINING OUR OWN FRONTAGE. I AM COMPLIANT WITH DESIGN GUIDLINES. I BELIEVE I WAS TRICKED INTO ASKING FOR AN APPEAL BY THE DESIGN COMMITEE ON THE BASIS OF "MODIFICATION OF PARKWAY", BECAUSE AT THE APPEALS MEETING THE BOARD ADMITTED TO ME THERE WAS NO SUCH RULE. EVENTHOUGH I RECIEVED APPROVAL AND APPLAUSE FROM ALL AFFECTED NEIGHBORS, THE BOARD OF 3 DISSAPPROVED THE APPEAL. A IF YOU" DON'T LIKE IT, THEN MOVE" POLICY IS EXTREEMLY UNFAIR-ESPECIALLY CONSIDERING THE DELIMMA I FACE IS BECAUSE SOMEONE ELSE DID NOT FOLLOW THE DESIGN STANDARDS-AND THE HOA SIGNED OFF- I WANT EITHER THE COVERS OR THEM PUT UNDERGROUND.HELP?
Submitted: 4 years ago via USLaw.
Category: Legal
Expert:  Dimitry K., Esq. replied 4 years ago.
Are you trying to figure out a way to appeal their decision?

What would be the cost to you in complying with the HOA directive?

What state are you located in?
Customer: replied 4 years ago.

yes, by our CC&Rs the board was well within their rights to issue me a varience. also after the fact i still have found no evidence in the governing documents that i am noncompliant with.

i am in a unique situation with all affected neighbors approval, i can't grasp how the decision could be in the best interest of the community.

i do want to stay on good grounds with the board, but i have not been presented with any evidence of incompliance on my part. they are just asking me to remove them, i believe because they have no law in force on the subject and they just don't want to deal with the subject at this time.

1)Do i have grounds to make them pay for my costs for the covers to keep them happy and have them removed?

2)Because my utlities are incorrectly placed, and the HOA released the bonds to that builder, can i make them place them underground?

Expert:  Dimitry K., Esq. replied 4 years ago.
I just have a few questions to ask you before I provide you with my answers. Thank you for the additional information--as you are no doubt aware, dealing with HOAs is never easy so I am trying to figure out all your options, if any.

How long has it been since the builder placed the utility covers?
Are the covers essentially on your frontage?
How long have you owned the property?
When did the HOA release the bonds to the builder?
Customer: replied 4 years ago.

this house was completed in Nov. 2007, i am the original owner,i tried resolving this the builder first, they directed me to the waiver i signed that plot plans are just that and the utlity company has the right to move them where they wish, then the ultility companies:they are where they are, cover them with rock covers.

They are on my frontage, one of only two properties where the utilities are not located on the property line.

i thought they were released last month, however my husband doesn't think they have released our street yet.

Expert:  Dimitry K., Esq. replied 4 years ago.
Find out if your street has been released--if it has not been, make sure that the builder repairs it.

Otherwise, unfortunately, you would be responsible for compliance and you would have to move the "rock" utility covers.

You can request that the HOA pay (or reimburse your fees) but your success is uncertain. This is your best bet:

1. Send a certified demand letter requesting that the HOA take ownership of the problem under the fact that the utility covers are not part of the frontage but are owned by the utility company, making the HOA and the utility company primarily responsible for their maintenance.

2. Claim that since the covers were negligently placed onto your property, you reserve the right to request that the HOA go after the builder on your behalf and have the builder repair their own mistakes.

3. If your street has not yet been released, request that the street is not released to the HOA until the builder properly and professionally repair and modify the utility covers so that they become compliant.

Give the HOA 14-30 days to respond and politely claim that although you are responsible for repairs, you are not responsible for the negligent installation of others. In a "carrot-stick" approach, change the tone and ask assistance from the HOA on your and the other property owner's behalf and ask them to intervene on your behalf to the builders.

If done properly, the HOA will look into the matter and try to hoist the responsibility away from them and you and onto the builder.

Sincerely,

Dimitry Alexander Kaplun, Esq.
Customer: replied 4 years ago.

?i don't understand how i am incompliant when there has been no rule against this?

Customer: replied 4 years ago.
do i make my claim of negligent installation and ask for assistance in the demand letter, or in a response after the 14-30 days?
Expert:  Dimitry K., Esq. replied 4 years ago.
The HOA can argue that by the virtue of the clause that relates to homeowner responsibility of all of the frontage, the homeowner is responsible for the utility covers. You see, the HOA likes to take an expansive view of the laws rather then a textual and minimalist. If you argue that since the poles are not mentioned, the HOA can come back with the expansive argument to their bylaws.

I am sorry I was not more clear--you make your claim and your plea for assistance all in your demand letter. The reason I did not number it was to give you a summary of how the tone of your letter should change from really assertive, to the final paragraph asking for help (in other words trying to give an HOA and honorable way out of the fight between yourself as the homeowner, and themselves and the Association, and giving them a bona fide option of blaming the builders for the problem).


Sincerely, XXXXX XXX.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36753
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 3 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

if they claim i'm responsible, how am i incompliant?--if i am not responsible i shouldn't have replaced the covers;)

anyways, i am nervous about how to go about writing this... do i demand with a threat of small claims court?

thank you for your advice, if you can add anything else i would appreciate it.

 

 

Expert:  Dimitry K., Esq. replied 4 years ago.
If they claim you are responsible, then you really have very little room to retreat to. Courts are generally very deferential and uphold HOA decisions unless the decisions are clearly discriminatory.

If the HOA knows this, then it is much less likely for them to agree with you, but if you try to get them to hoist it off to the builder, and not turn it into a bylaw interpretation, then you would be much more successful.

Sincerely,

Dimitry Alexander Kaplun, Esq.

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