By Deborah Goonan, Independent American Communities
Homeowners in a Fort Worth planned community say that soil erosion is causing their yards to sink, and sliding downhill each time it rains.
NBC DFW visited Glen Eden, and spoke with HOA President Terrence Watson, who says that 20 homes in the subdivision are affected by earth movement. Video coverage shows clear evidence of erosion, failing retaining walls, and fences tearing apart at the seams.
Glen Eden is a planned community of approximately 1500 residents. Covenants, Conditions, and Restrictions (CC&Rs) on file with Tarrant County, as of 2011, list D.R. Horton as the Declarant-Developer.
A 2013 Management Certificate lists First Service Residential as the manager of the community.
The community has no public access web site.
According to the NBC DFW report, the City of Fort Worth is investigating the problem.
Who’s responsible for the damages?
Unless the fences or retaining walls are covered by a builder’s warranty, the governing documents require property owners to repair damages.
Section 11.2.1 of the CC&Rs for Eden Glen assigns maintenance of fences, grounds, and landscaping to homeowners.
The fences are considered “party wall” elements if shared by two neighbors. In that case, repair and maintenance costs are to be shared equally by the neighbors who share the fence.
Notably, according to section 11.4.4, if one owner refuses to share the cost, his neighbor can file a property lien and foreclose it as a mechanic’s lien. The HOA does not get involved in this dispute!
According to a separate governing document entitled “Specifications Sourcebook for Eden Glen Estates,” if a retaining wall is located on the border between two lots, then the owner of the lot on the higher side of the retaining wall is responsible for its maintenance and repair.
If a retaining wall is located within the boundaries of a single lot, then that owner is solely responsible for the condition of the wall.
Specifically, the homeowner is responsible for unclogging the drainage system behind the wall, repairing any cracks or breaks in the mortar, maintaining proper drainage, and ensuring that animals or plant roots don’t destroy the integrity of the wall.
These repairs require skilled labor and an engineer’s expertise to ensure the design and strength of the wall is sufficient to hold back large volumes of soil — wet or dry.
Developer and home builder rights under the CC&Rs
In Texas, a developer controls the homeowners association until nearly all the lots are sold and homes are built, as specified in the CC&Rs. But, even once HOA board control is turned over to the homeowners, the developer maintains reserved rights to expand, build and sell homes, and select the management company, until the very last lot in the planned community is sold to a non-affiliated home buyer.
A February 2015 amendment to the CC&Rs for Eden Glen Estates grants Declarant control of the HOA board until the earlier of :
(1)15 years after the date on which this Declaration is publicly recorded, and (2)120 days after 95% of the lots that may be created (including property subject to annexation) have been improved with dwellings and conveyed to owners other than Builders or Declarant (also referred to as “at 95% of Build-Out or Sell-Out.”)
Reading between the lines…as long as a developer or home builder holds onto a small percentage of lots or unsold homes, Declarant control of the HOA can theoretically continue indefinitely, as long at the Declarant files another unilateral amendment during the control period.
According to a Supplement to the CC&Rs filed in 2013, the Declarant holds expansion rights until September 22, 2031. As of June 2013, the HOA is officially responsible for maintenance of the common areas.
Declarant controls CC&Rs, maintenance specifications
But notice that most of the shifting retaining walls and fences are not common areas. Therefore, the HOA plays no role in maintaining them.
It’s important to note that, during Declarant control period, the Declarant has the unilateral right to amend the governing documents and set the annual budget and amount of HOA assessments.
Homeowners get no voting rights for amendments to the governing documents, and have absolutely no control over how their HOA money is spent.
Guess who wrote the CC&Rs and Specifications Sourcebook, both of which saddle homeowners with responsibility for maintaining retaining walls and fences on sloped terrain?
That would be the Declarant — even though the developer and home builders designed and constructed the retaining walls and fences.
Conflict of interest? You bet!
Homeowners pay for excess shortfalls of HOA budget
This is not directly related to the broken retaining walls and fences, but it illustrates just how much power the Declarant has over homeowners in Eden Glen Estates.
The Declarant sets the annual budget and assessments, and only has the obligation to pay assessments to fund the “expected budget shortfall.” However, if the Declarant underestimates the shortfall, it has no obligation, under the CC&Rs, to fund the difference.
Instead, the Declarant can raise HOA fees and make the homeowners pay the difference, or reduce services to make up the difference.
The CC&Rs also prominently state that “Reserves aren’t funded by the Declarant.”
So, in addition to paying for problems with retaining walls and fences, all homeowners should expect to HOA fees to increase substantially to pay for “unexpected” budget shortfalls and underfunded reserves.
In this case, can homeowners rely on the HOA industry’s claim that CC&Rs protect their property values?
You be the judge. ♦♦
News Source:
Fort Worth Homeowners Concerned Over “Sinking” Yards (Video)
By Jack Highberger
Published May 17, 2019 at 9:45 PM | Updated at 10:24 PM CDT on May 17, 2019
Pubic Records Reference:
To view governing documents for Eden Glen Estates, follow this link to Tarrant County Super Search, and enter the following document IDs: D211220757, D211220760. You can preview each item, and click on the link to view a free copy. (must be viewed from a desktop device)
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