Non-functioning HOA

by Tom
(Ohio, Wood County)

Visitor Question: In the State of Ohio, the developer has deeded the common properties to the HOA. Included in the common properties is a vacant lot to be used for recreational purposes and a lot which contains the subdivision retention pond.

CC & R clearly states that the HOA is to insure and maintain common areas. This is also stated in Ohio Planned Community Law and the county subdivision rules and regulations.

Residents thus far have refused to elect any officers. The developer appointed officers who eventually resigned due to lack of cooperation and rudeness of some property owners. They have since moved from the subdivision.

As of now no officers exist, no dues have ever been collected and the common properties remain uninsured. Volunteers are cutting the grass of the common areas.

I am most concerned that I and everyone in the subdivision are at unnecessary risk because no insurance is in force for the common areas, especially the retention pond.

Is there anything we can do short of filing a lawsuit?

Editors Reply: Somehow this question got lost when it was asked, but it reflects a situation that is fairly common.

As you can probably guess, our basic advice will have to be consulting an attorney. But short of that, and as good preparation if you are going to take that route, read the CC&R or other pertinent documents to see if there is a way that a meeting of the HOA (homeowners association) can be called at the request of a certain number or percentage of the homeowners.

If so, work with neighbors to call the meeting. One of you should present really clearly the risk to your personal pocketbooks and the potential annoyance and pain of a lawsuit if someone were to be injured or killed in the common area.

In practical terms, it would have to be a pretty serious case to warrant suing all of you individually, but then, a serious case is what you should be insuring against.

If I were in your shoes, I would call an insurance broker and get a quote or at least an estimate on the cost of the insurance. Having that information in hand before a meeting would be really helpful. Even without the HOA functioning, I cannot imagine people walking out of the meeting without taking up a collection to buy the insurance. If you were to just buy the insurance without adhering to the letter of the law, at least the financial worry about legal liability would be minimized.

We would have this additional worry though. A retention pond eventually will need some maintenance beyond mowing. These depressed areas probably will need to have silt removed from them from time to time, depending on how successful or unsuccessful the original design was. Who is going to pay? If the recreational ground has any amenities or play equipment on it, what will happen when those items need to be replaced?

So aside from the insurance question, it is worth consulting an attorney to see what remedies the CC&R's offer you if your HOA does not function. If you cannot come up with a straightforward or creative solution based on that master deed, then you may need to talk to your attorney and your county about whether there is a way for the county government to just take over your subdivision, revoking whatever planned community status originally was granted and reverting to an old-fashioned subdivision where the county (or city, if you are in one) owns park land and infrastructure such as stormwater detention and retention.

This probably would present some issues, since no doubt your subdivision was designed to take advantage of the planned community status. But those issues might or might not be easy to resolve.

In fact, talking to the county attorney may be a good starting point for the broader questions raised by the non-functioning HOA. Typically that conversation would not cost you anything and would shed light on that person's reaction to the whole situation. If the county is unsympathetic and states in no uncertain terms that they are not interested in taking over your subdivision under the normal subdivision ordinance, then it becomes even more important to pursue a legal path toward forcing an HOA election and performance according to the CC&Rs.

As usual when we dive into such matters, we have to reiterate we are not attorneys, but simply are trying to give you some ways to think about your situation with this non-performing HOA.

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