No HOA not working out as planned

[Chubbs55]

Greetings friends. 

Last year, thanks to a shit ton of research on the part of some neighbors, we were able to stop our township from forcing our neighborhood to form an HOA.  We have 2 retention/irritation areas for water to drain to on either side of the subdivision.  One side is mowed by a neighbor and the other is natural.  A developer is building a subdivision down the road and wondered why both areas were not being maintained properly (which is why the town got involved and wanted the HOA).  Someone from the DNR came out and said The area should not be mowed for maintaining the integrity of the area for the long haul.  They recommended things to plant and said we could develop it into a prairie.  Not everyone is on board with that.  Half is now mowed and the other half is natural.  When some neighbors went to plant some tall grasses and other plants approved by the dnr, the neighbor who mows his half came by and mowed everything down and sprayed the shit out of a large patch of milkweed which is one of the plants recommended by the DNR.  My question is; who would be an expert to contact that would know the best way to maintain the area so it continues to work the way it does?  Secondly, the same said neighbor allows his kids to drive their atv in the irrigation area (it does not normally have water).  Several neighbors have voiced concern that if something happens to their kids without an HOA in place, could they come after the neighbors?  Everyone in the subdivision is a part owner of both areas.  Is it even legal to drive an atv in that area?  Maybe an HOA would have been better.  Thanks for any advice.  In Wisconsin.

[GizmoTX]

The fact that everyone in the neighborhood owns a part of those common areas is exactly why you want an HOA with bylaws that all agree to follow. Usually this is when each homestead is purchased. It also gives you the means to assess reasonable dues for the common area maintenance — I suggest the same amount for each homestead. Currently you have a rogue homeowner who considers the common area his private domain.

HOAs get a bad reputation when one or more of the board members act the way your roque neighbor is doing. Then you have to vote them out.

[Indexer]

My dad lived in a neighborhood without an HOA for awhile.

Then his neighbor decided to turn his garage into a professional garage/body shop, and he liked to work at night. It was rather loud.


HOAs can get out of hand, but anarchy can also get out of hand and is harder to course correct.

[zolotiyeruki]

Yeah, an HOA to maintain common areas can be beneficial.  An HOA that can tell individual homeowners how they can/can't use their own property can become an issue.

[sol]

Why did the neighbors fight the formation of an HOA, if you have shared property?  Is there already some other structure or agreement in place to manage the retention ponds?  Because if not, then I suspect you kind of screwed yourselves.

I'm personally a fan of HOAs, now that we're past the days when they were used to keep Jewish and black people from moving into the neighborhood.  (As an aside, that's why HOAs were first conceived back in the 50s, to help enforce segregation.)  I like HOAs because they put everyone in the neighborhood on equal footing, with clearly defined rules for what is and is not allowable and how to deal with violations of those rules, and every single person who lives there has agreed to those rules when they bought the property.  Don't like the rules?  Fine, go live somewhere else.  Everyone who lives here agrees that you can't burn cars in your front yard, and if you do you're going to get a polite note from the HOA board reminding you of your commitment not to do that.

Right now you have conflict over how to manage the retention pond areas, and you have no clear course on what to do next.  You're going to have to go talk to your neighbors and try to work it out.  I suggest gathering a few of your neighbors together to go talk to the guy who rides ATVs on your shared property, and tell him that he can't mow or spray that area anymore.  It doesn't belong to him.  Hopefully he'll agree, if he sees that enough of his neighbors want him to stop.  But if he doesn't?  Well, that's what HOAs are for.

[Aggie1999]

Just say no to HOA's. They make all the rules, etc and you still end up with something like a rent house across the street that mows the yard once a summer, won't trim, edge, etc. At the same time you get some asinine certified letter from the HOA complaining about one rogue weed it your yardl. Also, HOA's generally come with yearly fees that can be substantial where you may not get value from your money. In general I have found very little use for HOA's. If a neighborhood is going to go to shit, it will happen with or without an HOA.

[sol]

They make all the rules, etc and you still end up with something like a rent house across the street that mows the yard once a summer, won't trim, edge, etc. At the same time you get some asinine certified letter from the HOA complaining about one rogue weed it your yardl.

Regarding "they make all the rules", the HOA is you.  You make all the rules.   It's a representative democracy, with each property having an equal vote.  If your neighbors vote for different rules than you would vote for, then you're in the wrong neighborhood and should move.

Regarding "asinine letter", the problem that most HOAs have is that asinine letters is about all they can do.  So they send one to every property that has a problem, and conscientious property owners like you get all offended about being called out for their weeds, while the delinquent renters across the street just ignore it because they don't care.  Letters are only effective when the resident actually cares.  In most cases, they can safely be ignored if you don't mind your house looking bad.

My HOA technically has the authority to pay for remediation and then put a lien on the home, but what does a homeowner care about a lien if he's not planning on selling?  It's just free serviecs when the HOA pays to fix something, to them.  My HOA has less than 50 homes in it, so we have a pretty healthy and open discussion about how to deal with communal matters like plowing and sidewalks, but there is one home that was storing all of their household garbage in their back yard, for like two years.  It was drawing rats, and the neighbors complained to the HOA, but the HOA is basically powerless about what you do in your back yard, behind a fence, because the rules only apply to the visible front portion of your house.  Garbage is a health and safety issue though, and the HOA referred the issue to city code enforcement, and the problem got fixed.

HOAs aren't necessary in many places, but any time a neighborhood has a shared obligation like private streets or a retention pond, you need SOME way of dealing with that lest all of the power devolve to the hands of whomever stands up to take it.  HOAs exist to protect the rights of the homeowners, and I don't really see why so many people hate them.

[Papa bear]

They make all the rules, etc and you still end up with something like a rent house across the street that mows the yard once a summer, won't trim, edge, etc. At the same time you get some asinine certified letter from the HOA complaining about one rogue weed it your yardl.

Regarding "they make all the rules", the HOA is you.  You make all the rules.   It's a representative democracy, with each property having an equal vote.  If your neighbors vote for different rules than you would vote for, then you're in the wrong neighborhood and should move.

Regarding "asinine letter", the problem that most HOAs have is that asinine letters is about all they can do.  So they send one to every property that has a problem, and conscientious property owners like you get all offended about being called out for their weeds, while the delinquent renters across the street just ignore it because they don't care.  Letters are only effective when the resident actually cares.  In most cases, they can safely be ignored if you don't mind your house looking bad.

My HOA technically has the authority to pay for remediation and then put a lien on the home, but what does a homeowner care about a lien if he's not planning on selling?  It's just free serviecs when the HOA pays to fix something, to them.  My HOA has less than 50 homes in it, so we have a pretty healthy and open discussion about how to deal with communal matters like plowing and sidewalks, but there is one home that was storing all of their household garbage in their back yard, for like two years.  It was drawing rats, and the neighbors complained to the HOA, but the HOA is basically powerless about what you do in your back yard, behind a fence, because the rules only apply to the visible front portion of your house.  Garbage is a health and safety issue though, and the HOA referred the issue to city code enforcement, and the problem got fixed.

HOAs aren't necessary in many places, but any time a neighborhood has a shared obligation like private streets or a retention pond, you need SOME way of dealing with that lest all of the power devolve to the hands of whomever stands up to take it.  HOAs exist to protect the rights of the homeowners, and I don't really see why so many people hate them.

The HOA can start foreclosure proceedings if there is a lien on the property.  Growing up, we lived in a very well run HOA neighborhood.  I remember the story of someone not paying dues and the house almost being foreclosed before the owner got the message that they needed to pay!

In this circumstance by the OP, I would talk to neighbor first and then potentially seek counsel for advice on how to protect yourself from liability as well as a way to move forward. 




Sent from my iPhone using Tapatalk

[rantk81]

Can you quit-claim your ownership in the shared parcel?  If not, perhaps it is possible to separate your deed into two parts -- one for your property and one for the shared parcel, and then quit-claim the shared parcel?  These would be questions for an attorney and/or your county recorder.

[BlueMR2]

Shared / common property is bad news.  Perfect reason for an HOA.  And this coming from someone that absolutely hates HOAs in the general case as they seem to typically get taken over by the really obnoxious neighbors you are trying to avoid in the first place and then they regulate you to death on picky little things while getting away with all kinds of abuse.  Any reasonable town/city will already have more reasonable noise / light / repair / lawncare regs in place.

HOAs can go burn in a dumpster fire *except* if you're saddled with the nightmare of liability that shared / common property brings.

[roomtempmayo]

If I were in your shoes, I'd try to get the DNR more involved.

There's a good chance that the original environmental impact statement for the development spelled out how the water retention areas were supposed to be maintained and used.  If it says no mowing, no spraying, and no vehicle traffic (all likely) then you can try to get the DNR to enforce it.  Your success there is going to be dependent on finding someone who is motivated to police it, which isn't all that likely.  Unfortunately, water quality and drainage requirements are routinely flaunted without consequence.

If you can't get an external authority to police the area to some agreed upon standard, then you're stuck either trying to sell or transfer the property to private ownership somehow so that at least someone is in charge of it, or just allow it to be a total free for all in that area.  You'd think people could share common space without wrecking it, and most people can.  But, as you've seen in your case, it just takes one a-hole who's going to do whatever he wants to ruin it for everyone.

[FIRE@50]

Form the HOA, put a fence around the area in question, don't touch it again.

That is the plan that I would go with.

[GreenToTheCore]

Silly question: if all the neighbors are owners of the land, then is there a way for the majority of owners to enforce usage? 
If someone was mis-using my property I would expect the police to write a ticket or something. Or is the 1 jerk owner allowed to do whatever he wants?

I agree with seeing if the DNR can be involved. Or if it's water related, looking into the area's water quality department (ex. a city's Water Source and Quality Division).

[sol]

Silly question: if all the neighbors are owners of the land, then is there a way for the majority of owners to enforce usage? 

If they had an HOA, sure.  Without one?  I don't think so.

An HOA's founding documents would spell out allowable uses, non-allowable uses, and consequences for violations.  Usually, the consequences are pretty toothless, like "a warning letter will be issued and recipient shall have 30 days to rectify the problem" and if that fails, there's usually a second and sometimes a third version of "ask politely and then do nothing" that can easily be ignored.  Ultimately, the HOA can spend it's money to hire a lawyer to try to collect a fine or pay for fixing the problem and apply a lien, but these things cost thousands of dollars and the HOA is very unlikely to every collect.  At that point, it just becomes all of the neighbors who pay into the HOA spending their money to fix problems created by one neighbor, who probably doesn't even pay his HOA dues anyway.

I live in a neighborhood with an HOA, and it's been kind of shocking how impotent it really is, when you get right down to it.  I understand that people don't like getting complaints from their neighbors, routed through the HOA, but it seems those complaints can safely be ignored.  If you want to burn a sofa in your front yard, run a drug den in your basement, raise livestock, built a twenty foot tall barbed wire fence, or any of the other things that HOAs typically try to forbid, you'll quickly discover that they can't actually stop you.  At best, the HOA can call city police if there's a specific infraction of city codes, but any neighbor can do that anywhere, with or without an HOA.  The HOA is just a way to attempt to resolve these problems in a more friendly way, between neighbors, without involving the cops.

[MilesTeg]

Why did the neighbors fight the formation of an HOA, if you have shared property?  Is there already some other structure or agreement in place to manage the retention ponds?  Because if not, then I suspect you kind of screwed yourselves.

I'm personally a fan of HOAs, now that we're past the days when they were used to keep Jewish and black people from moving into the neighborhood.  (As an aside, that's why HOAs were first conceived back in the 50s, to help enforce segregation.)  I like HOAs because they put everyone in the neighborhood on equal footing, with clearly defined rules for what is and is not allowable and how to deal with violations of those rules, and every single person who lives there has agreed to those rules when they bought the property.  Don't like the rules?  Fine, go live somewhere else.  Everyone who lives here agrees that you can't burn cars in your front yard, and if you do you're going to get a polite note from the HOA board reminding you of your commitment not to do that.

Right now you have conflict over how to manage the retention pond areas, and you have no clear course on what to do next.  You're going to have to go talk to your neighbors and try to work it out.  I suggest gathering a few of your neighbors together to go talk to the guy who rides ATVs on your shared property, and tell him that he can't mow or spray that area anymore.  It doesn't belong to him.  Hopefully he'll agree, if he sees that enough of his neighbors want him to stop.  But if he doesn't?  Well, that's what HOAs are for.

In nearly all cases, HOAs for stand alone properties are wholly unethical.

The only circumstances in which an HOA can be ethical is when

* It's truly a choice to live in one. That means potential home owners have a choice between living in HOA or non HOA communities that are otherwise equivalent. Equivalent locations, costs, access to schools, build quality, build ages, etc.

AND

* the HOA is legally constrained to only proportionate actions for violations. Any situation in which your home can be taken away from you because of petty offenses isnt just unethical, its flat out evil.

Also, you don't seem to grasp what a lien means. A lien isn't just a little nuisance, it's a means through which the HOA can foreclose on your home in order to collect that debt. I other words, if you have a $50 fine for not mowing your grass, the HOA can put a lien on your house, then foreclose on you to sell the home to collect that debt. You are out the entire value of your property they have their $50.

When you join an HOA that you give right of first lien to, you don't own the property, the HOA does. Youre just paying the mortgage for them. Know what you are signing up for.

Its pure insanity.

[MilesTeg]

Greetings friends. 

Last year, thanks to a shit ton of research on the part of some neighbors, we were able to stop our township from forcing our neighborhood to form an HOA.  We have 2 retention/irritation areas for water to drain to on either side of the subdivision.  One side is mowed by a neighbor and the other is natural.  A developer is building a subdivision down the road and wondered why both areas were not being maintained properly (which is why the town got involved and wanted the HOA).  Someone from the DNR came out and said The area should not be mowed for maintaining the integrity of the area for the long haul.  They recommended things to plant and said we could develop it into a prairie.  Not everyone is on board with that.  Half is now mowed and the other half is natural.  When some neighbors went to plant some tall grasses and other plants approved by the dnr, the neighbor who mows his half came by and mowed everything down and sprayed the shit out of a large patch of milkweed which is one of the plants recommended by the DNR.  My question is; who would be an expert to contact that would know the best way to maintain the area so it continues to work the way it does?  Secondly, the same said neighbor allows his kids to drive their atv in the irrigation area (it does not normally have water).  Several neighbors have voiced concern that if something happens to their kids without an HOA in place, could they come after the neighbors?  Everyone in the subdivision is a part owner of both areas.  Is it even legal to drive an atv in that area?  Maybe an HOA would have been better.  Thanks for any advice.  In Wisconsin.

Don't sign away the ownership of your home to try to resolve this. Consult a lawyer who can suggest sane ways to go about sharing common property. Perhaps an LLC or other such organization.

[Chubbs55]

I’d like to thank everyone for their advice and apologize for not responding sooner.  The person that has taken matters in his own hands does not trust any recommendations from the DNR.  He works for the town and they are the ones who wanted it maintained as per the original agreement when people bought in our area.  Since there were no details regarding what “maintained” should include, we reached out to the DNR.  Since the 1 neighbor does not trust the DNR, we’ve decided to hire an expert who has agreed to come out to evaluate the area and let us know how best to maintain he area.  We posted this on our Facebook page for the neighborhood hoping to get people involved and ask questions.  At the very least to be educated in how it should be maintained.  It would figure the 1neighbor was the only one to reply.  While I understand the benefits of an HOA, I don’t know if it would be enough to stop the neighbor from doing what he thinks is best, regardless of what others tell him.  Everyone around us keeps to themselves and is respectful of others.  I’m not against the HOA, it is just the enforcement part I question.

I’ll post another update after the ecological expert comes out. 

[Villanelle]

I've lived in several places with HOAs, and they have all been good to great. 

You say that you don't know if an HOA can stop the neighbor.  That may be true, but they can force him to decide whether he wants to continue mowing HOA property and destroying plants paid for by the HOA, but also face a bill for replacing those plantings (and eventually fines if he refuses, which can become a lien on this property if it gets to that point). 

That's generally the "teeth" of an HOA--fines.  While some are nastly, generally it is "you have 30 days to remove the inoperable car from your front lawn.  You can apply for an extension if you explain your son is coming on day 45 to tow it, but can't get here before then.  After that, there are fines, which vary in amount and usually escalate.  At some point when the amount is high enough, they can place a lien on the property.  If they are good, they will work with someone on time, and also keep them informed of the steps to come so they can be avoided. 

In a case involving violations of a common area that include destruction of property (and yes, destroying the landscaping is just that), they would likely bill for the damages.  This might extend to liens if necessary (probably depends on local HOA laws, as well as your HOA rules) or even court. 

When this guy is hit with a $500 bill for destruction of landscaping (after it is made clear that the HOA has decided on X landscaping in the common area), he may reconsider.  Him mowing down landscaping he doesn't own is no different than if he did it in your yard, and the solutions available to the HOA are similar (actually, the HOA probably has more options).  So while it may be true that you can't stop your neighbor from destroying your personal flower beds, it's unlikely he's going to keep doing it if you decide to use the means available to you to stop him.

But hopefully it won't come to that.  When an HOA puts out a notice that they've decided to go with X plan from Acme landscaping and work will begin August 1, and that the area will be maintained by Acme) or the HOA landscaping committee in accordance with the Acme plan, or whatever, he most likely will realize he can't just change that at his own whim. 

Also, the HOA can absolutely include in the by-laws that ATVs are not allowed on community property.  That way, at least is his kid is hurt and he decides to sue, you have some proof you tried to stop it.  And you might even be able to go after him to pay off the lawsuit since it was his violation that cause the injury, making him unlikely to essentially sue himself. 

[Chubbs55]

Great input as always.  As I mentioned, the neighbor works for the same town that forced us to clear cut the area.  The town chairman is a small man who loves the power of his position (I honk he would do well in Washington).  This all came about when developer started a subdivision down the road from us and was wondering why our area was not being maintained.  They are also putting in two infiltration areas that the DNR already stated would not work as designed.  The problem is, no one listens to the recommendations from the DNR.  Everyone still does things the way that they want.  Our are worked as designed for years.  While there were some invasive weeds we let go for too long, the area was fine and working.  We feel he town chairman is in bed with the developer and will have a huge say in the maintaining of the area even with an HOA.  Since there are only four houses that border it, no one really gives a hoot about the area.  Instead of an HOA, is there another way to set up rules and regulations for moving forward?

[Villanelle]

Great input as always.  As I mentioned, the neighbor works for the same town that forced us to clear cut the area.  The town chairman is a small man who loves the power of his position (I honk he would do well in Washington).  This all came about when developer started a subdivision down the road from us and was wondering why our area was not being maintained.  They are also putting in two infiltration areas that the DNR already stated would not work as designed.  The problem is, no one listens to the recommendations from the DNR.  Everyone still does things the way that they want.  Our are worked as designed for years.  While there were some invasive weeds we let go for too long, the area was fine and working.  We feel he town chairman is in bed with the developer and will have a huge say in the maintaining of the area even with an HOA.  Since there are only four houses that border it, no one really gives a hoot about the area.  Instead of an HOA, is there another way to set up rules and regulations for moving forward?

Who actually owns the land?  You say that "all the neighbors" are owners.  Is that everyone in your subdivision, or just the people who share this land's borders?  Does this guy have a shared border? 

If an HOA isn't an option, you could consider trying to get everyone to quit-claim or sell their share to one party (or just the homes with a shared border), though you are likely going to need a lawyer and to see if the city will even allow that.  Then, the owner or owners could enforce rules in their property just as they do in the property on which their home sit.  It this guy mows, they can charge him with trespass, sue him, etc.  But the downside is that everyone else loses access.  Or they could allow access, but they they are taking on liability. 

You could come together as a neighborhood and try to agree on rules, but they may not be enforceable in any way.  I'm not sure how that would be any different than your current situation. It would be a gentleman's agreement, and especially if this guy doesn't agree to sign, it would mean nothing, most likely.  This guy isn't likely to follow rules he didn't agree with /to, if he isn't already.   And the liability with the ATVs would still be a problem.  If your town has regulations on where an ATV can be used and tis is a violation of those, you can report him to the police and they can maybe cite him. 

You could also consider selling the area to the developer, and just be done with the whole thing.  If it's desirable, he might be interested.  You could insist on a caveat that allows you all to continue using it (in addition to people from his development).  He might not go for it, but it could be worth it to rid yourself of the headache. 

Really, there aren't many options because you are trying to add rules after the fact for someone who clearly isn't interested in or in agreement with those rules.  Without changing the status of the property (HOA, selling to a set of neighbors or the developer, etc.), I don't see how there's much you can do to make someone behave how you want on land he partly owns.  You have no more right to make choices about that land than he does, under the current set up.  Unless and until he violates city rules (and even then, you could all be potentially liable for fixing that violation), I don't see much you can do to force him to comply with your wishes.

[GreenToTheCore]

Silly question: if all the neighbors are owners of the land, then is there a way for the majority of owners to enforce usage? 

If they had an HOA, sure.  Without one?  I don't think so.

... [HOAs] can't actually stop you.  At best, the HOA can call city police if there's a specific infraction of city codes, but any neighbor can do that anywhere, with or without an HOA.

Thanks for trying to explain. I think I'm still missing something, though. Why is the only way for a group ownership to mean anything is with an HOA? But then an HOA wouldn't be able to do anything anyways?
It seems like land ownership has to have some sort teeth.

Thanks for the updates @Chubbs55

[electriceagle]

Don't sign away the ownership of your home to try to resolve this. Consult a lawyer who can suggest sane ways to go about sharing common property. Perhaps an LLC or other such organization.

This seems like the perfect way to handle shared property of limited value. Why isn't it done more often?

[MilesTeg]

Don't sign away the ownership of your home to try to resolve this. Consult a lawyer who can suggest sane ways to go about sharing common property. Perhaps an LLC or other such organization.

This seems like the perfect way to handle shared property of limited value. Why isn't it done more often?

Because for some reason people are eager to sign away ownership of their homes to third parties so that they can force their neighbors to maintain their property to their standards. IOW: people can't MTOB

[MilesTeg]

Silly question: if all the neighbors are owners of the land, then is there a way for the majority of owners to enforce usage? 

If they had an HOA, sure.  Without one?  I don't think so.

... [HOAs] can't actually stop you.  At best, the HOA can call city police if there's a specific infraction of city codes, but any neighbor can do that anywhere, with or without an HOA.

Thanks for trying to explain. I think I'm still missing something, though. Why is the only way for a group ownership to mean anything is with an HOA? But then an HOA wouldn't be able to do anything anyways?
It seems like land ownership has to have some sort teeth.

Thanks for the updates @Chubbs55

sol is very incorrect in any case where you sign right of first lien away to the HOA (which, in my experience, is how most HOAs are provded with "teeth"). If you sign the right of first lien over to your HOA, you are signing ownership of your home to that third party. If you have a debt to that HOA, they can put a lien on your home and foreclose/repossess it just like the bank. They can then sell that property to recover that debt and whatever costs they incurred.

And you have zero recourse, because you signed the contract giving them the right to do that!

Don't do that, it's crazy.