HOA responsible for erosion caused by neglect of lake vegetation

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Dear Poliakoff,

Approximately 60% of the homes in our HOA-governed community have lakeshore property located entirely within the community. The HOA has long emphasized vegetation control along the edge of the lake, with monthly spraying of emergent vegetation to keep lawns very tidy. They were also sold a bucketful of fish – literally – by a management company that overloaded the lake with far too many vegetation-eating grass carp. Unfortunately the spraying and all the cows swimming around trigger the erosion of properties – we have lost over five feet of property over the last decade this is accelerating and there are about 15 feet left before the fenced part of the court is threatened

I have discussed the issue with the HOA, and they insist that erosion control is the owner’s responsibility, even if it is triggered by their lake management practices. Simply stopping spraying could slow erosion loss, and some people have installed rip rap banks over landscaping fabric to prevent further erosion. The fish, at least, get so old that they die. Land reclamation is even more expensive than rockfill – using geotubes to trap dirt/sand pumped from the lake bottom, for example, costs around $100/linear foot of shoreline, and still requires installation native riparian vegetation to fully stabilize the slope.

Do we, as owners, have any recourse to force the HOA to adopt more reasonable mitigation efforts, or even engage in restoration efforts?

Signed, JS

Dear JS,

To assess a legal issue such as the one you describe, I would always start by reviewing the statement of undertakings. You should carefully evaluate the specific language that obligates the association to maintain the lake and/or vegetation and see exactly what it says about the extent of the association’s maintenance responsibilities. Is the association responsible for the maintenance of the lake and the banks, perhaps? Or do we simply say that the association maintains the vegetation and landscaping, but neither the lake nor the banks themselves? And where exactly does your property line end and where does association ownership begin? Does the owner’s property literally go to the lake (which is possible, but not always the case)? Or, does the HOA own a strip of property around the lake that they literally fail to maintain? All of these initial questions are important.

I would also look for wording in the water management statement. Many counties require the homeowners association to agree by convention (and sometimes through the dish) to maintain water bodies within the community, and this language can be broad enough to encompass lake shores as well. . There’s simply no way to know without a thorough review of the statement.

To that end, you should also take a look at your community’s dish (if it was in fact flat in the first place). Many dishes will contain specific language regarding how lakes are to be maintained and the extent of responsibility of the entity in charge of maintenance. Indeed, the surface water management system, which may include lakes, may be subject to a specific permit describing in more detail the maintenance perimeter. If this is the case, you will also need to consult the permit.

Assume, for the sake of argument, that your statement obligates the association to maintain the lake itself, but says nothing about the shores of the lake, except that the association is responsible for vegetation control ; and that the owners of the lot own the property up to and along the lake. At this point, you effectively have a negligence argument. You would say that the association’s unreasonably insufficient maintenance of vegetation (over-watering of vegetation that would buttress lake shores; overcrowding of the lake with carp) has resulted in erosion that has shrunk your property, causing damage to your property ; and ask a court to order the HOA to compensate you for the damage or repair the damage by rebuilding the shoreline (or both); then also change its maintenance practices to prevent future erosion. Given current conditions, this may or may not include the installation of erosion barriers.

Ryan Poliakoff, Partner at Backer Aboud Poliakoff & Foelster, LLP, is a Certified Specialist in Condominium and Planned Development Law. This column is dedicated to the memory of Gary Poliakoff, a pioneer in the community association legal industry, tireless advocate and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Send your questions to [email protected]. Please be sure to include your location.

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