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I have lived in this "community" for 7 years; I have had nothing but conflict and problems with this HOA. The biggest one being chronic flooding on my property due to inadequate planning and drainage systems. There is a "common area" that drains water from the back of the subdivision which lies at the front end of my property. Basically my property lies in between the "common areas," because of poor drainage this water from the entire community floods my property as well as all of my neighbors. The problem is that the HOA refuses to do anything about this ongoing issue. The HOA is not properly maintaining these common areas, claiming that they have no funds to do so.
They have inspected it and acknowledged the problem, they installed a berm to supposedly help alleviate the problem, but this made it worse. I installed a dry creek in March; my property at the time had 6 inches of standing water on it. Can I sue the HOA for the cost of this dry creek--$3200.00 (it did manage the water problem) and what about the inane "fine" they gave me $50.00 for not asking them first for approval to install the dry creek? I was told that my foundation was in jeopardy by 2 contractors and I acted accordingly to protect my house from additional damage. Do I have any legal cause to sue them?
Can anyone give me any advice with regard to a small claims suit?
Last edited by lilly225; 07-09-2012 at 08:12 AM..
Reason: grammar
Well of course you can SUE them. Anyone can sue anyone else for any reason. Doesn't even have to be a good reason. In your case, I'm not so sure if it's a good reason. Lets look at this another way. Let say your house was built along a river and every time the river floods, so does your house. Can you sue the township because they allowed there river to flood? Or they built a levy and it failed? Someone how I think the answer is going to be no. In your case, your living on the edge of basically a man made lake, your housing inspector should have warned you that it could overflow and probably shouldn't buy the house. I would think you have to take some of the "blame" for purchasing a house on a lake. Question, did you buy the property from the original developer? If so, you probably really should have asked the developer to address the issue before waiting 7 years to do so. I guess if you could get an engineer to agree that the water drainage basin is too small for the number of drains draining into it, you could have a case of not properly engineered basin by the original developer. However good luck getting any money out of them. What they usually do when building a new development is incorporate into the "ABC building corp", and after the development is completed, they close the books and dissolve "ABC building corp" and create the "BCD building corp" to build the next project. It protects them from long term liability issues.
The HOA didn't design the water basin also they don't make it rain. If in fact they could make it rain, well case closed, you have a easy case. But since they are not causing this issue, I'm not sure they can be held liable. Another example was be if a forest fire swept though and burned your house to the ground. The fire came from the direction of your neighbors property, could you make a reasonable case that it's your neighbors fault since the fire came from his property, he is to blame for you house catching on fire? Unless the neighbor started the fire in the first place, it's really not his fault.
I'll go with what Tecgromit said, and add that your fine was appropriate since you didn't turn in plans for the creek bed and didn't get plans approved. You signed a contract agreeing to abide by the HOA rules before you moved in to that home. Get out a copy of the CC&R's you signed, learn the rules, and follow them.
Even if you have an excellent reason for constructing the creel bed, you still are required to follow the rules. It will make your life much easier if you follow the rules you agreed to follow. Submit plans and have an approved set of plans available before you make any changes to your home or landscaping..
I'll go with what Tecgromit said, and add that your fine was appropriate since you didn't turn in plans for the creek bed and didn't get plans approved. You signed a contract agreeing to abide by the HOA rules before you moved in to that home. Get out a copy of the CC&R's you signed, learn the rules, and follow them.
Even if you have an excellent reason for constructing the creel bed, you still are required to follow the rules. It will make your life much easier if you follow the rules you agreed to follow. Submit plans and have an approved set of plans available before you make any changes to your home or landscaping..
Sound advice. A lot less aggravating doing it that way.
To answer the question at face value-
The answer is: NO!
But. Yeah, there's always a but. The development plans had to be approved by AHJ (Authories Having Jurisdiction). Was the approved plan followed? Now ask yourself; "if" the approved plan was followed and has now been altered without the AHJ's approval then you got a mighty leg to stand on. Just contact the AHJ and ask for their engineer to come and assess.
Then again- if the change the HOA did was approved by the AHJ and by your account it's not working; then by all means contact them for a re-assessment.
Bottom line is protecting your home from potential damage- even if you have to jump through a few hoops.
Thank you for your response. So I have to go to the town and ask the agency that originally approved these plans to have an engineer come and inspect this? DO I find these records in the town courthouse?
Not to beat a dead horse, but doesn't the HOA have some obligation to maintain the grounds-- I mean isn't that their function?
You need to have an engineer look at the property along with a copy of the original site plans.
The design should not have allowed water to drain on your property.
The HOA has no liability, but you could have a case of malfeasance or misfeasance with the developer or contractor that executed the work.
Also, just because the site plan was approved by the AHJ doesn't mean it was engineered correctly to begin with. And if this is the case, the AHJ has no liability either.
Call your city or county Community Development government office or its equivalent. Explain the problem and see what documentation they have on your subdivision. They may or may not be able to help you, but hopefully they can point you in the right direction.
But if the HOA didn't maintain the area properly and that caused flooding, doesn't the OP have a case against them? Also, if they made a faulty system, isn't that their fault (knowing full well that the HOA would then sue the contractor/ engineer)?
The primary fault lies with the developer and the municpal zoning and planning dept that approved the development. The HOA is not responsible unless they unlawfully made physical changes (after development approval) to cause the problem.
The HOA should be the primary party officially initiating the complaint with the backing of all the homeowners complaining to city government about this problem.
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