By Deborah Goonan, Independent American Communities
According to a homeowner lawsuit recently filed in Fort Bend County, Texas, Weston Lakes POA won’t address serious erosion problem in their drainage ravine.
Joe and Jill Nixon purchased what they thought was their dream home in Riverwood Forest at Weston Lakes in July 2015. But within less than a year, the Nixons discovered a serious threat to their Fort Bend County property.
Their backyard is rapidly eroding, with huge chunks of soil and fully grown trees being washed away by torrential storm waters overflowing the banks of a storm water ravine that homeowners say should be maintained by their homeowners’ association.
Viewing the original realtor.com photos, it’s easy to see why the Nixons purchased their home in Fulshear. At the time of sale, the lot was represented as 1.64 acres, with a thick wooded buffer between the home and the drainage ravine at the rear of the property.
The description for the home listing read as follows:
Located at the end of a cul-de-sac, this extraordinary 1-Acre setting will visually transport you to another world. Lot is exceptionally wide affording great privacy, backs to a gorgeous ravine and is shrouded in a forest of trees. Country living at its finest with views from every room.
However, below is an aerial view of the Nixon’s property and the ravine, recently recorded by a drone. Two homes are visible at the right side of the image — the Nixons’ home near the middle right margin, and their neighbor’s home in the lower right corner.
Extensive erosion has literally carved wide path on is way to the drainage easement.
A not-so-gorgeous ravine
The Nixons now know that the ravine behind their Houston area home serves as a drainage easement for all 163 lots in Phase 2 of the Riverwood Forest subdivision of Weston Lakes.
Riverwood Forest was developed by Bluegreen Southwest One, LP. Most of the homes were built in the 1990s, and the developer handed over control of the POA in 2002.
At the time of original construction, Fort Bend County permitted the developer to use a natural, dry ravine to collect stormwater from upstream properties.
As a condition for project approval, the developer agreed to the County’s requirement to assign future maintenance and repair to the Weston Lakes Property Owners Association (the HOA). Therefore, drainage easement maintenance is the responsibility of the POA, not the Fort Bend Drainage District.
Unfortunately, two storm events in 2016 caused the Brazos River level to rise and overflow into the Weston Lakes ravine. Rushing waters caused extensive erosion and washed away a significant portion of the Nixon’s wooded back yard.
The Nixons repeatedly notified their POA about the damage, to the drainage easement and their personal property.
But, much to the homeowners’ dismay, their POA had failed to take action to stabilize or repair the drainage easement. That led to additional erosion from Hurricane Harvey in 2017.
A large portion of the Nixon’s back yard is now a 75-foot crevasse with steep cliffs leading down to an ever-expanding ravine. The area continues to erode with each rainfall.
Lawsuit filed against POA
Attorney Richard D. Weaver, The Weaver Law Firm, filed a lawsuit on behalf of the Nixons in January 2018.
According to the complaint, the community’s Covenants Conditions and Restrictions (CC&Rs) state that maintenance of the drainage easement (ravine) is a joint responsibility of adjacent lot owners and Weston Lakes POA. However, the CC&Rs also stipulate that homeowners are not permitted to “interfere with” the storm water drainage patterns as they existed at the time of construction.
Therefore, Weaver argues, the homeowners cannot be expected to modify or repair a large, commonly-owned drainage easement that collects storm water from 163 lots. The ravine leads eventually to the Brazos River.
Furthermore, no professional engineer is willing to accept the liability to approve a new design plan for private homeowners, citing the fact that the POA is responsible for ensuring proper maintenance of the drainage easement affecting all 163 homes in Riverwood Forest at Weston Lakes. Any modification to a single segment of the drainage easement is likely to divert water to neighboring properties.
And, not surprisingly, the scope of work for a proper repair is way beyond the financial means of a single property owner.
Special assessment allowed
The lawsuit cites CC&Rs that give the POA the authority to issue a special assessment to pay for repairs needed as a result of failure of the drainage system. But so far, the POA has not taken action to explore solutions, nor has it assessed the members of the POA.
In other words, the homeowners are stuck.
As Joe Nixon explains, “If the facts of my lawsuit are correct, we purchased our forever home in the well-known city of Weston Lakes, with iron-clad covenants. This non-action by the property owners association board of directors has caused me to file a civil lawsuit in the Fort Bend County 240th District Court. I have no other recourse than to ask a judge and jury to decide the intent and language of the covenants.”
Complaint filed on behalf of Joe Nixon and Jill Nixon, by Richard D. Weaver, The Weaver Law Firm
The lawsuit alleges several causes of action, including breach of contract and negligence. The Nixons seek reimbursement of monetary damages to their property, including exemplary (punitive) damages, due to severe erosion of their private property and the POA’s failure to maintain and repair the ravine that serves as a drainage easement.
Joe Nixon and his wife, Jill, hope their POA will take action sooner rather than later, or they fear they may lose their home.
“In an attempt to summarize my opinion,” says Joe, “this process has been extremely stressful, expensive, and a lengthy without resolution in sight.”
“The covenants in our development within Weston Lakes have remedies to assess, quote, and fund the repairs/maintenance of drainage easements. The property owners association board of directors has chosen to not enforce the covenants as written. Arbitrary and selective enforcement of covenants to reward/punish residents is just Wrong period.”
“Jill and I truly are alone (except for our attorneys) in this battle to save our retirement home coupled with a significant reduction to our retirement savings, before it slides into the abyss.”