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Tina
Tina, Lawyer
Category: Real Estate Law
Satisfied Customers: 5436
Experience:  17 years of legal experience including real estate law.
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My name is***** live at*****

Customer Question

My name is***** live at***** Granbury, Tx. 76049. I live in an HOA, Pecan Plantation. We have had ongoing drainage issues within the HOA for 15 plus years. It has final come to a head with several residents very angry. A study was done by Halff Engineering Co., in December 2015. They found many drainage issues and gave a written & verbal summary of the corrections that needed to be made. Prior to this their did 7 other drainage studies from 2002 to 2014. I have one of the HOA's drainage pipes that is in and part of my easement. It has caused a very large sink hole on my property, and continues to be a danger to my family and any kids or neighbors that may cross that area. The ground gave way once leaving a 5 foot deep sink hole and approximately same size in diameter. I took pictures of the cracked pipes and requested the HOA to repair. They are saying it is not their pipe?? We filed suit against them last year over the flooding & sink hole, and last Monday, the judge ruled in their behave saying we did not prove negligence on their part. We have also flooded twice because of their drainage ditch at the rear of our property overflowed and flooded our home and our neighbors. Our attorney sent their attorney an email last week asking that they repair the pipes. We still have not heard a word. What can I do? We do not have the money to suit them again. We are seniors and on a fixed income. What steps can I personally take. Who can I contact to have someone look at the situation and make a ruling on the pipes. Isn't there a state agency or someone who can help. I am at a loss, as our home is our investment. Any help would be gratefully appreciated. Regards, ***** *****
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  AttyHeather replied 7 months ago.
Hi, My name is*****'m an attorney with 15 years vigorous courtroom practice experience, and I would like to assist you in answering your question. My response is for information and education, and not as legal advice and we do not form an attorney/client relationship.You are in a tough situation. That is unfortunate that you lost your case against the HOA. In order to prove negligence, you have to first prove that the HOA has a duty to do something. You say that they are not maintaining the pipes, and it is causing problems for you. They say the pipes are not theirs to maintain. It is likely that the covenants or Bill of Assurances on record with the recorder's office state that each property owner is responsible for the maintenance of pipes running under their property, or it might say something like all owners are responsible together for maintenance of the pipes. It sounds like the judge agreed that the HOA didn't have a duty to maintain those pipes. If they didn't have a duty to maintain the pipes, then they didn't breach any duty when they failed to maintain the pipes.The drainage ditch is probably a similar issue, but I have seen situations where a ditch was not draining because it got clogged with leaves and debris downstream and a particular lot always got flooded. The HOA had no responsibility to keep the ditch clear - - especially since it was getting clogged a quarter of a mile down the stream. The homeowner had to go out there from time to time where the ditch got clogged up and clean it out himself. It was a pain, but he had to do it because there wasn't really any person who had a duty to clean out that ditch. When you buy a property, you can look at the covenants to see if the developer or HOA takes on certain ongoing duties and responsibilities. Often times, they do not, so it is wise to study and ask questions before you buy. It could be that you have a bad situation that happens and no one has a duty to ensure that it doesn't happen.Unfortunately, in TX, there is not a state agency that regulates HOAs. See http://www.sos.state.tx.us/corp/hpoafaqs.shtmlIt's a long shot, but there might be a chance that your homeowner's insurance policy might pay the repair, but that is normally if the pipe burst suddenly. You might check your insurance policy to see what it says.You have presented a complicated issue. I wish that there was an easier answer. If I have answered your question, please respond and let me now. Also, please credit me with a satisfied rating so that my site administrators know that I am doing a good job. This does not mean that I have found a perfect solution, because obviously in this case, there is not a wonderful option. I hope that I have helped.Best,Heather S, Attoreny

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