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HOA Question Assumptions a) Subdivision - 20 parcels

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HOA Question: Assumptions: a)...
HOA Question: Assumptions: a) Subdivision - 20 parcels with fee simple townhomes b) No Common Property Ownership c) No mention of any Common Elements in Homeowners Declaration d) bunch of easements in Homeowners Declaration Can an HOA, 25 years after a declaration was written (1985), arbitrarily define structures (such as a retaining wall) as a common element not built or used by the HOA, which reside on selective homeowners premises which is clearly defined in the plat drawing on record with our city?
Submitted: 7 years ago.Category: Real Estate Law
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Answered in 28 minutes by:
9/18/2011
Real Estate Lawyer: Loren, Lawyer replied 7 years ago
Loren
Loren, Lawyer
Category: Real Estate Law
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Experience: 30 years of real estate practice experience.
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No, in order to amend the definition of common elements or include a structure not previously defined, the declaration would need to be amended by the association in accordance with its terms and the terms of the bylaws. The adopted amended declaration would then need to be recorded. Until that time, the board may not unilaterally label structures as common elements which are not so defined in the declaration.
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Customer reply replied 7 years ago
Ok, The HOA Declaration has no definition of Common Elements in it because chose easements and assigned the HOA to create policy for ensuring that the easement are maintained.

Somebody is saying it does not matter, there are legal statutes that say the HOA can define these retaining walls because in 1985 (creation) the way you defined common elements was different. I do not understand this because that would suggest that in 1985 the law was that you could have all homeowners of an HOA be responsible for undefined elements which the HOA decides is a common element at a later time?

What are your thoughts?
Real Estate Lawyer: Loren, Lawyer replied 7 years ago
It would still be required that the common elements defined today would need to be part of an amended declaration, regardless of what existed 26 years ago. What the other owner asserts might hold true if the bylaws or declaration contain a provision allowing the board to create common elements from time to time, but if they are not even addressed in the declaration then they can not be created now unless the declaration is amended.
Loren
Loren, Lawyer
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Customer reply replied 7 years ago
Wait, sorry! I clicked wrong button, one last thing:

The issue is these two walls are damaged by a third party (whole other story on why they did not go after them... just shake your head).

They want to say always have been (Which you have answered) but you say they cannot. If they add them through the process to amend the declaration, can they go retro and force the members to pay for damage that was done prior to declaring them as a common element?

Real Estate Lawyer: Loren, Lawyer replied 7 years ago
They could assess the members to repair the newly adopted common elements. They would have to, again, abide by the bylaws in the adoption of a special assessment if the repairs were not covered by the regular maintenance budget or account.
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Customer reply replied 7 years ago
Ok, I will have one last thing on it and I will give you a bonus.

If the private currently owns the wall and the HOA wants to make it a common element, do we have to go through a process to transfer ownership of the structure to the HOA and, does this mean we need to take ownership of the property for which it resides?
Real Estate Lawyer: Loren, Lawyer replied 7 years ago
Yes. The association would need to be the record owner of its common elements.
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