HOA cannot guarantee your lake view, safety

By Deborah Goonan

You’ve seen the advertisements boasting “lake view” lots in many planned communities, sometimes adorned with lovely water fountains. In fact, you might even pay a premium for a “water view” lot. Even if you do not buy a home adjacent to water, be aware that they are common areas to be maintained by ALL homeowners in the Association.

Therefore, consider the following little-known facts about ponds and lakes in planned communities.

1. Did you know that most of these “lakes” are really nothing more than storm water ponds? In fact, these ponds are required by local water management agencies, as a method of collecting and holding storm water run off to prevent flooding and downstream pollution of reservoirs and navigable waters.  If you look closely, you will often notice, along pond embankments, large storm pipes leading directly from catch basins in the street. When it rains, or when snow thaws, water from roads and from adjacent lots flows directly into these ponds, carrying dirt, gravel, road salts, oils, lawn fertilizers and general debris along with it. Contaminants slowly sink to the bottom of the pond, so that overflow from the top of the pond is relatively less polluted as it makes it way downstream. The remaining water remains in the basin, providing your view.

2. These man made ponds are rarely large and deep enough for recreational uses, and even if stocked with fish, they would not be edible due to the high incidence of contaminants and presence of bacteria. Swimming is almost always prohibited for the same reasons.

3. Local municipal and county governments usually require Associations to maintain storm water drainage systems within their boundaries. Many HOAs will contract with a Lake Maintenance company to monitor water quality, in an attempt to prevent algae, overgrowth of vegetation along the perimeter, or growth of invasive aquatic plants  that can turn a lovely pond into a marsh. Because these bodies of water are an integral part of the storm water system, their working parts require regular inspection and maintenance to prevent clogging and failure, particularly overflow weirs and dams that control the flow of water to prevent flooding.

While most of these “lakes” look attractive when they are new or only a few years old, as they mature, problems can develop, especially if they are not properly maintained. While the developer is actively constructing homes, maintenance tends to be adequate. But after control of the Association is turned over to homeowners, if there is not a comprehensive maintenance plan in place – or if that plan is not sufficiently funded – maintenance is often ignored or deferred, and the condition of these ponds begins to decline. After several years, what was once a pleasant vista can turn into a mosquito-infested cesspool. Even worse, deferred maintenance can lead to failure of the drainage system and downstream flooding.

4. Sometimes wildlife becomes a nuisance, especially if residents regularly feed the animals. The usual troublemakers: geese, ducks, swans, alligators, otters, and beavers. Tragically, alligators have been known to attack and kill small pets that have wandered too close to the pond’s edge. You can expect that your Association will occasionally have to call in animal control experts, who will usually find humane methods of removing or controlling the population.

5. Bodies of water present safety hazards and related insurance liabilities for the Association. Each year, hundreds of people accidentally drown in a retention pond. In most cases, because these ponds are marketed as desirable views, there are no fences or vegetative barriers to prevent people from accidentally falling in. When an injury or death occurs, it almost always results in legal liability for the Association, which may or may not be fully insured to cover the loss.

6. Sometimes water is pumped from these ponds on a regular basis and is used to irrigate nearby green spaces, especially in golf course communities. That means that in period of drought, the water level in the pond may drop significantly, and look more like a mud puddle than a lake. And as you can see by the example presented below, the official documents of the Association do not guarantee your water views!

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Note that there is absolutely no guarantee of a pleasant
Note that there is absolutely no guarantee of a pleasant “lake view” when the Association can remove water to use for irrigation. Association can choose if and when to control invasive plants, or remove animals that pose a nuisance or threat to owners.

7. Individual homeowners often share maintenance responsibility with the Association. For instance, most CC&Rs will require homeowners adjacent to a pond to maintain the grass and other vegetation up to the embankment or even the water’s edge. But at the same time, the owner is prohibited from altering the embankments in any way, without prior authorization from the Association and the local government agency that governs storm water systems. This is one of those gray areas in deed restrictions, where it may be difficult to determine whether the HOA or the individual lot owners must pick up the cost for certain repairs such as erosion of the embankment. See the example below.

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Owners can end up paying to correct erosion on lake embankments. This provision does not address erosion that is not caused by the Owner, such as might occur due to defective design or major storm events.
Owners can end up paying to correct erosion on lake embankments. This provision does not address erosion that is not caused by the Owner, such as might occur due to defective design or major storm events.

Further Reading:

Suffolk neighborhood discusses safety after 6-year-old found dead in pond (NewsChannel 3)

Cudahy woman dies after vehicle crashes into pond (WISN ABC)

EPA Storm Water Technology Fact Sheet, Wet Detention Ponds

Homeowners, governments spar over needed flood repairs (AJC.com)

HOA holds meeting about geese issue, no decision made (Fox Carolina)

Pictures confirm alligator in Del Valle neighborhood (KVUE ABC)

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