Financial Drainage

Requiring new developments to assume maintenance responsibility for detention & retention ponds has become standard practice for local municipalities.  These governing agencies benefit from shifting the financial burden from themselves to Homeowner Associations. This is perhaps an easier pill to swallow for a new community, who can take over the management and maintenance of all aspects of the community from fairly early on in the process. But what happens when a county attempts to shift responsibility for pre-existing systems in older communities?

Earlier this year, a trial court in Georgia upheld an ordinance requiring a Homeowner Association to maintain an individual homeowner’s storm drain system, even though the drainage system had not been turned over to the Association, and the county ordinance was enacted years after the placement of the system.  In John Rymer v Polo Golf & County Club Home Owners Association, Inc., the court rejected the Association's claim of “grandfathering” and concluded that public safety concerns outweighed contractual obligations imposed by the community's Declaration. The court stated that imposing the duty on the Homeowner Association to maintain the drainage system “…enhances the HOA’s ability to enforce its contractual rights under the declaration because if the individual lot owner refuses to maintain the storm water structures on his lot then the HOA has the backing of the ordinance which forces the HOA to ensure lot owner compliance.”  

This would be similar to any other county ordinance that a homeowner violates, with the Association pointing to the government as “the bad guy” when requiring compliance.

Although this decision is not considered “case law” unless it is appealed, the reasoning behind the decision has been upheld in other parts of the country, and Associations should plan their financials accordingly to avoid being liable for property damage caused by flooding, sinkholes, etc.

It's Beginning to Look A Lot Like Christmas...

Once summer comes to a close, it seems like the remainder of the year just flies by - with one holiday rapidly followed by the next! While this is obviously a very fun and festive time of year - there are a few things to take into consideration when getting your home all decorated for the holidays.

With Halloween over and all the spooky decorations taken down (hopefully!) and stored away, we are now all focusing on holiday decor. If you live within an HOA or COA, there more than likely are covenants related to when you can put up holiday decorations, probably when the decorations must be taken down, and possibly even some limitations on the extent of your decorations. It's up to your Board to fairly enforce these covenants. It probably isn't the  intent of any board member to be viewed as being a 'Scrooge' when it comes to regulating holiday decorations - however, it is an important duty that these board members hold. After all, no one wants a neighbor who still has Christmas lights up and an inflatable Santa in their front yard come March!


From a Board perspective, the following are a few tips for retaining the holiday spirit while still maintaining your community standards:

1. Let reason rule - Reasonableness is almost always the key to successful community management. What is your community's goal when it comes to regulating holiday lights? If your association is considering adding restrictions - start with the goal and then work backward. This will help ensure that you don't enact too-strict restrictions, when more relaxed rules will get the job done. For example, if all you want to do is make sure that holiday lighting isn't over the top in your community, an outright ban is entirely too harsh. A more appropriate approach might be to focus your restrictions on the size and timing of holiday displays.

2. Reserve your rights - It's hard to define what's 'over-the-top' before a homeowner actually goes there. This obviously can be a problem when it comes to enforcement. As a result, it's smart to include the right for the HOA's architectural review committee to approve (or disapprove) holiday displays. That way, if an owner includes a feature that was never anticipated by the Board - but that's clearly not something your community approves of - you can ask for it to be modified or removed.
3. Consider what's too much - Generally, the most effective rules are those that specify when holiday decor can be put up and when it must be taken down. For example - decorations can be put up no sooner than 30 days before the holiday and removed no later than two weeks after the holiday. Rules can also include restrictions on the scope of the display (think Clark Griswold's house in National Lampoon's Christmas Vacation). Some associations allow only a certain length of lights (ex: 100 total ft of lighting). Others limit the areas on which lights may be hung (ex: along the roof line, front door, front windows, and one tree in the front yard). An association may also want to consider roof-anchored display restrictions (ex: inflatable Santas and reindeer) and sound restrictions (an all-out ban or restricting to certain hours - to keep from disturbing neighbors during the night). 

4. Remember the spirit - Although it is important for your association to retain it's aesthetic integrity - its also just as important to act in the spirit of the season and choose your battles wisely. If a homeowner is an active and good neighbor throughout the entire year and revels in holiday decorating, you have to ask yourself whether or not the display is so outrageous that it's worth dampening that neighbor's year-round goodwill. In many cases, you'll find you're better off smiling and enjoying the display in the spirit in which it was intended.

Holiday Home Security Tips

Halloween is over, so it's time to start thinking about the holidays!

Each year, along with all the joys of the holiday season, we also see an increase in criminal activity.  Most of these are crimes of convenience or opportunity.  According to the FBI, nearly 400,000 burglaries occur in the US from November through December each year.  Here are some tips to avoid becoming a victim of the holiday thief:

•Do not leave valuables in your vehicles - especially computers, electronics or wallets.

•Do not store presents in the garage or in a vehicle.

•Lock all vehicles.

•When possible, keep all vehicles in a garage and keep the garage door closed.

•Keep all windows and doors locked – both to your vehicle and to your home.

•If you have an alarm – use it! Consider installing a system if you do not currently have one in place.

•Only turn on Christmas tree lights when someone is home.

•Use outdoor lights as a deterrent. Motion-detector spotlights are great!

•Place all outdoor lights and some indoor lights/TVs on timers when you are out of town.

•Take a reserved approach when displaying expensive decorations and gifts – if they can be seen from the street, there is a good chance that these valuables could end up on a burglar’s wish list!

•After the holidays – be careful when discarding empty boxes from items like computers, flat screen TVs, etc. Instead, break them down, put them in large bags, and place them in your recycle bin or trash can. Another option is taking them directly to the recycle center.

•Keep plant material pruned below window level. Also make sure large bushes, hedges, and trees are kept pruned to avoid giving burglar's easy hiding spots in your yard. 

•Do not store ladders outside where they are easily accessible.

•Shred all documents that may contain personal information before disposal.

•Arrange to have your mail picked up or held when you are out of town.  Stop newspapers or have them picked up.

•Do not use your mailbox for outgoing mail.  Drop all mail in a U.S. Postal Service mailbox.

•Let a trusted neighbor know when you will be out of town.  Make sure the neighbor has your contact information in case of emergency.

•Let your local police department know you will be out of town.  Most police departments will add the home to a watch list and check the property a few times while you are out of town.

•Do not open your door for people you are not expecting.

•Be aware of your neighbors and surroundings.

•Report all suspicious activity to 9-1-1 immediately!

Obviously, some of these tips apply throughout the entire year and not just during the holidays.  However, preventing break-ins by increasing your home security during the holidays should be part of your plan during the busy and wonderfully hectic season of shopping and gift-giving, decorating and celebrating with friends and family.  Don’t let an incident, like a burglary, dampen your holiday season!

Hoarding - It Can Be a Community Concern Too

News stories and reality TV shows about compulsive hoarding behavior, or Collyer’s Syndome, are appearing more and more frequently.  While the contents of these collections may appear humorous or even entertaining, there is nothing funny about the potential life and safety issues impacting the hoarder and his/her neighbors.  Many times, the items hoarded can essentially be considered garbage - which attracts pests and creates a stench that permeates nearby homes.  The collection also creates a greater likelihood of fire and blocks pathways inside the home that are used by emergency responders providing assistance.  

While the governing documents of many Associations may prohibit unsanitary conditions, actual enforcement is another matter.  When a situation has become so serious that the Board of Directors takes notice, the lengthy notification process for the Association to take action is likely a roadblock.  Depending on how entrenched the hoarder is, the Association may have to obtain a court order permitting entry into the home.

A far faster solution is to notify the local governing agencies, such as Code Enforcement, Adult Protective Services, or the Fire Marshall.  Generally, they will be able to respond more quickly to head off a potential disaster.  Unfortunately, some governing agencies can also be slow responders, or may shy away from confrontation due to media coverage.

If this occurs, the next best step is to locate family relatives who may have some sway with the hoarder, and can see that he/she is provided with mental and medical assistance.  This too may be a slow process, depending on whether a competency hearing must be held before the family can act.

No matter the direction the Board chooses, the Association’s attorney should be involved in the process every step of the way, advising how to proceed with minimum legal exposure.  Be aware that the Fair Housing Act may protect the hoarder due to his mental condition, and the court might require extended attempts to have the hoarder reduce his collection before finally concluding that the situation is no longer tolerable.

Throughout the ordeal, the Association should maintain detailed records of hoarding conditions and what actions were taken to resolve the problem.  If the unthinkable happens, and multiple homes are damaged, these records of action will be critical in protecting against any claims brought against the Association.

Hoarding behavior is a serious situation that cannot be ignored.  If you receive reports that such activity is occurring, act promptly to ensure the best possible outcome for everyone.