Developer is long gone, County says it is a private drain, and HOA blames tree roots – says it is not their problem to fix
By Deborah Goonan, Independent American Communities
Yet another report of storm water drainage headaches in a homeowners association. This one involves a 66 home subdivision – Saddlecreek HOA – constructed in the 1990s, near Birmingham, Alabama.
Take a look at the following video, and you will see a gaping hole in one unfortunate homeowner’s yard. According to the report, Sevim Whitaker has been in an ongoing dispute with her HOA for four years, and has taken the matter to court.
It is quite clear from home video that, when it rains, storm water is backing up into the street and along one side of Whitaker’s property. All of that water, draining from the entire community is dumped into a drainage pipe that was originally installed underground along one side of Whitaker’s yard, leading to a brushy common area intended to serve as the discharge point for storm water.
But the drainage system has failed, and Saddlecreek HOA is unwilling to make repairs. So Whitaker has been left with no choice but to sue her HOA in an effort to protect her property.
Drainage dilemma threatens family’s home (AL)
A drainage dilemma of major proportions has a Jefferson County homeowner worried she’s losing her home. She wrote Fighting For You asking us to look into the issue to warn others.
Built in the mid-90’s Saddlecreek off 119 in Jefferson County faces a draining legal battle. “We could never sell our house,” explains Sevim Whitaker. For four years the sinking spots around her home have gotten bigger and bigger. The largest hole exposes decaying, broken pipes and stretches under her neighbors’ driveway. It measures nine feet wide and four feet deep.
Whitaker says only after her yard started sinking did she learn the community drainage ran through her yard. Now, nobody will step up and help her fix it. She’s on her own. The developer is long out of the picture. Jefferson County told ABC3340 News this drainage was never inspected by the county. It’s on private property and they cannot step in.
Read more (Video)
So, let’s examine the critical points brought out in this report.
1. At the time of construction, Jefferson County did no inspection of the drain pipe in question, because it’s on private property.
Really? Were there no stormwater building codes in the mid 1990s? Was there no easement approved and marked in official land records for the portion of the drainage pipe beneath the homeowner’s lot?
By “private property,” is the County referring to Whitaker’s private lot or Saddlecreek HOA’s common property? Which kind of “private” property are we talking about?
According to the report, this is yet another example of a mandatory association-governed community constructed with unpermitted, uninspected, and/or unapproved stormwater infrastructure.
2. Whitaker’s insurance company makes a good point. Why didn’t the developer use concrete pipe? What was Jefferson County’s code requirement back in the 1990s?
Just because PVC or thin metal drain pipe has been used all over the area, according to the HOA’s attorney, that does not mean it was the appropriate choice of material. Again, knowing there would be no inspection of the stormwater pipe, why would any developer bother to spend the extra money on concrete pipe?
By the time the cheap stuff wears out in 20-25 years, the developer and home builders are long gone.
3. Attorney Don Wiginton, representing the HOA, insists Whitaker has a “nuisance” caused by her neighbor’s shrub roots. He says the HOA bears no responsibility.
But…isn’t the association responsible for maintaining the “private” storm water system, even if it passes under a homeowner’s lot by easement? Certainly, those details would be spelled out in the Declaration of Covenants and Restrictions (CC&Rs), and mapped on plats (land records) on file with Jefferson County. Curiously, the governing documents are not accessible from the public website for Saddlecreek.
And, by the way, how is it that Whitaker’s neighbor was able to plant large shrubs in the storm drainage easement? And who was supposed to approve that landscape plan? Oh, right, that would be Saddlecreek HOA.
4. Saddlecreek HOA expects Whitaker to absorb a $60,000 expense to remedy the problem.
The homeowner is appalled to learn that the HOA refuses to take responsibility and divide the total cost among all members. (That would be around $900 per home, although the HOA might be able to offset part of the cost of the project by cutting expenses for nonessential services.)
There’s a huge Buyer Beware message here.
Whitaker and millions of other buyers of HOA property are told that the Association maintains common property so you don’t have to. That is why you pay HOA assessments.
But here is an example of what really happens when common property requires an expensive repair by the Association: the HOA’s cost-shifting strategy begins.
First, the Association ignores the homeowner’s complaints as long as possible. Then the HOA attempts to shift blame to homeowners for causing the problem in the first place. Or they point to a vague provision in the covenants and use all sorts of legal interpretation gymnastics to explain why the HOA is not really responsible for common area maintenance repair in this particular case.
In a nutshell, Saddlecreek’s inferior stormwater system is failing right on schedule – approximately 20 to 25 years after construction. I would be willing to bet there’s no money in the HOA’s reserve account set aside for stormwater drainage system repairs.
Just about every HOA dispute comes down to the money.
I hear these kinds of horror stories from real homeowners all the time. For every public report, I hear at least a dozen that go unreported to the media.
Housing consumers are led to believe that HOAs protect their investment and enhance property values. But, clearly, there are no guarantees. And when the HOA fails to take full responsibility for maintaining the common area and underlying infrastructure, it is more likely to harm property values than protect them.
5. And now, for the most absurd portion of the report – advice for home buyers from engineers.
Tell me, what buyer is going to be able to research storm drainage prior to purchase? Are home buyers now supposed to hire a civil engineer for a pre-sale inspection of common areas of the HOA, or just the areas adjacent to the home for sale? Is a home buyer supposed to hire someone to research stormwater permits?
Yes, the buyer could visit the neighborhood under consideration during a good rainstorm, just to see what might happen and where the water drains. But that is not always practical, and only provides a snapshot of conditions during one particular rain event. One week after the buyer closes the sale, the system could fail after many years of neglect and deterioration.
As a home buyer, you should be represented by an attorney, who will do the title search and examine land records on your behalf. That would at least reveal if an easement has been created on the property – assuming the land records were properly filed in the first place. What if they were not?
The sad truth about association-governed, common interest communities
The entire situation at Saddlecreek is a classic case of blaming the victim for the errors and misdeeds of responsible parties. Although an association-governed community theoretically operates for the common good of all its members, when challenges arise, the majority of members are often more than willing to dump the entire risk and financial burden on the minority or even a single homeowner.
Every home buyer needs to consider the following question:
Will you be one of the unlucky homeowners left to bear the brunt of financial risk?