By Deborah Goonan, Independent American Communities
Here’s an update on a previous blog about Liberty University’s lawsuit over cost-shifting of dam repairs at Ivy Lake.
A previous lake owner gifted Ivy Lake to Liberty University (LU) several years ago. However, LU has since been ordered by the state of Virginia to make major repairs to the spillway of the dam in order to protect downstream properties from catastrophic failure. Costs to repair the dam are estimated at $1 million. If not repaired, The Department of Conservation and Recreation (DCR) has determined that the dam would have to be removed, draining Ivy Lake and cutting off road access to many homeowners in the Forest, Virginia neighborhood.
The lawsuit involves more than 400 homeowners, and seeks a cost-shifting arrangement that would obligate homeowners to pay for needed repairs to preserve Ivy Lake. LU has proposed the establishment of a homeowners association (HOA) to assume ownership of the lake to pay for ongoing maintenance.
While approximately 130 homeowners have agreed to the arrangement, another 60 homeowners have filed responses to the lawsuit indicating their unwillingness to assume full ownership responsibility for the lake.
Some homeowners that don’t even live on the lake say they don’t mind paying to use it, or to drive over the dam, they just don’t want to own it.
Ivy Lake homeowner Reggie Lynch has lived there for 6 years, and he says owning a lake wasn’t something he or his neighbors signed up for when moving in.
“They feel like they’re being bullied into trying to take ownership of the lake,” said Lynch.
“That new DCR regulations required them to updates to the spillway, they have to reinforce the spillway with concrete,” said Lynch.
Those repair costs, valued at $1 million dollars, would also shift to the homeowners.
Homeowner Susan Faulconer says it’s a shock to many residents.
“I feel like they are wanting to shift that burden to my neighbors and me, and I don’t appreciate it,” said Faulconer.
There may also be a price for non-compliance.
“If you don’t pay, then they can put a lien on your house. You’d be forced into this POA,” said Lynch.
What makes the Ivy Lake legal dispute so controversial is that homeowners surrounding and nearby the lake are not subject to a mandatory property owners association. When they purchased their homes, there was never an agreement to pay for costly dam repairs and ongoing lake maintenance. Homeowners did not sign up for legal and insurance liabilities that go along with common interest in a lake.
And, most importantly, property owners did not agree to a mandatory owners association with costly assessments that create a perpetual lien upon their homes.
Attorney David Helscher in Roanoke says this type of agreement is outside the norm.
“Typically you do that up front, so that every time the title to the property changes hands, that deal has already, it’s part of what you’re buying, as opposed to imposing that on people who already own the land,” said Helscher.
That’s why this case is worth following. If the courts were to legally impose a homeowners association where none currently exists, it would set a precedent that would further erode private property rights in the state of Virginia, and pontentially, across the U.S.
Virgina attorney John Cowherd doubts that an owners’ association will be forced upon homeowners, although a cost-sharing arrangement seems likely. He writes an informative essay on his blog.
I doubt that the judge would enter an order that would create a quasi-HOA relationship between the parties absent a unanimous agreement. The lawsuit burdens the owners with having to defend the case. It forces them to take a position, either participate in the maintenance and repairs or abandone their interest in the road, dam and lake. I would be very surprised if the judge would do more than deciding that the LU subsidiary is entitled to financial contribution for the minimum amount of repairs to maintain the easements.
Let’s hope Attorney Cowherd’s analysis is correct.