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If a 16 unit HOA needs to repave our road and the original

developer still has 3 lots...
If a 16 unit HOA needs to repave our road and the original developer still has 3 lots can we charge him the 8% of the repaving legally
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7/24/2013
KimberlyLaw
KimberlyLaw, Attorney and Real Estate Broker
Category: Real Estate Law
Satisfied Customers: 4,219
Experience: 13 years of experience in real estate law: Foreclosures, Landlord-Tenant, Condo/Coop, Property Law, Deeds, Purchases/Sales, Estates.
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Hello, I am happy to assist you today.

Yes, generally that is how it would work. You should look in the Offering Plan and see if it addresses this, but if those 3 lots use that road then it would be fair to charge the developer his percentage of that fee.

Let me know if you have any questions.
Kimberly
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Customer reply replied 4 years ago

Kimberly,


The offering plan was done in 1984 and the built units have been turned over to the HOA years ago...He has 1 lots to still be developed ( which 3 townhomes can built), and yes it is the middle of our small development..we are wondering is he obligated legally to pay his portion or do we have a legal recourse if he doesn't? ie: lien on the small parcels he is trying to sell?


Thanks, XXXXX XXXXX President

Hi Cindy,

Thanks for that new information.
If you have the offering plan you need to look at that first, to make sure that this type of fee was not somehow excluded. It is not common that the developer holds onto some of the lots for so long, but if he attempted to limit this type of liability it would be in the offering plan.

If not, I would go ahead and charge him for this. It is advisable to speak with him directly first before just sending him a bill. It is usually better to communicate first than to send an impersonal letter or bill after the fact.

Kimberly
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Customer reply replied 4 years ago

Kimberly,


Our Treasurer did send out a very nice email re: his share of approx $1800, he replied saying he does not have to pay anything.. We need to know if we do not have the original offering and our big fear is when and if he sells the property and our road has been repaved , construction starts and there's damage to our newly paved road (approx.100 yards in from entrance) and he has not paid anything, then what is our recourse.


Thanks, Cindy

Cindy,

So are you saying that you don't have the offering plan? There has to be a way to track it down. This is a document that must always be kept on hand because each new owner is entitled to review it.

Of course, if there is any damage to your road then he would be legally obligated to pay to fix it.

If you don't currently have an offering plan that you can find and refer to, it sounds like you need to get an agreement drafted between you to make sure that nothing happens during construction. There are many possible issues that could come up.

Kimberly
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Customer reply replied 4 years ago

Kimberly,


I believe what I'm not making clear to you is the developer turned over to HOA between 1984-86 , when the original paving was done, so therefore there is no offering to be had....


Our road needs to be repaved and the property he still retains and is trying to sell, is approx. 8% of the total frontage on the HOA road.


I'm coming to think there is no recourse to him not paying for his portion of property within our HOA. This property is not in the HOA since it is retained by the original developer...


 


 

Ok, it sounds like you have a strange situation. Typically, when the developer holds onto a portion of the property, even if it is turned over to the HOA, there are parts of the offering plan that are still in effect. That is an important point and you need to speak with the lawyer who handled that and be sure that there are no longer any clauses in effect. There should be, because that is where you would find the answer here.

Again, if not, you need to get a contract here. Without a contract, you are still protected in regards XXXXX XXXXX road and any damage that he may cause, but I am concerned that other more important and expensive things might come up. Again, that is where the offering plan would come into play.

And regardless, the offering plan is a part of the history of the property and every single owner is entitled to a copy of it. That is standard.

Kimberly
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Customer reply replied 4 years ago

Kimberly,


I am a FL Broker who happens to be the HOA president where I live. While I admit I do not know all of the answers, I have never heard of an offering plan to be in effect once the property is turned over to a HOA or Condo Association. The only time I have seen such paperwork is when the developer still has not sold enough % to fulfill satisfaction in order to turn it over...


I guess I will have to check into where I can find the original offering papers..


Thanks, Cindy

Ok, well I have seen that quite a lot. And whenever I do a sales transaction I always get a copy of the offering plan to review it. It is frequent that there are active clauses in the plan after the HOA is formed.

Good luck.
Kimberly
KimberlyLaw
KimberlyLaw, Attorney and Real Estate Broker
Category: Real Estate Law
Satisfied Customers: 4,219
Experience: 13 years of experience in real estate law: Foreclosures, Landlord-Tenant, Condo/Coop, Property Law, Deeds, Purchases/Sales, Estates.
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KimberlyLaw
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