Problem with non-maintenance of a pond located within an HOA. - Ask Extension
My HOA Master Deed states that the detention pond in my neighborhood may NEVER be dredged. The pond is over 50 years old and 30 years ago when this si...
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Problem with non-maintenance of a pond located within an HOA. #867382
Asked May 07, 2024, 10:07 AM EDT
My HOA Master Deed states that the detention pond in my neighborhood may NEVER be dredged. The pond is over 50 years old and 30 years ago when this site plan development was built - they installed 3 storm water inlets and 1 outlet. So it is a detention pond now and not a natural pond. The leaves and debris have been piling up for 30 years. I have paid EGLE to do a site visit and have been issued a minor project permit, but because our Master Deed states it can never be dredged, the HOA refuses to budge. I realize we would need to amend our Master Deed. The Township refuses to get involved. How would you suggest I move this issue off dead center?
Oakland County Michigan
Expert Response
Hello,
How to move the issue off dead center? Tough question. I must confess that I am not an expert on this issue of HOA and Master Deeds for Condos as those are in the private property rhealm. It seems there are fundamental underlying issues:
1) Why did the authors of the Master Deed say no dredging? Is it to support (natural ecosystem, fishery, frogs,), Y, Z or deter disturbing that ecosystem, vegetation disruption, or Z.
2) Is the prohibition of dredging the pond to support or deter those elements still relevant to the original intent of the authors? What has changed? Why does it matter?
3) Is dredging the pond in your personal best interest but not the interest of the HOA? How does the HOA benefit from dredging such that it is worth it to amend the Master Deed?
Another option is to bring in an objective expert around the health of the pond and to provide a balanced set of reasons for dredging or not dredging. Hiring a real estate attorney with experience in amending Master Deeds could also help the board understand the costs/process/timeline. It is reasonable and expected for the HOA to hold firm to the Master Deed until it can be amended.
My questions above are rhetorical; to make a point about the costs/benefits and reasons for prohibiting dredging in the initial deed. We do have water resource educators that might be helpful in framing some of the ecological issues with dredging or not dredging a detention pond within the Condo if you were to submit another question.
Best Regards,
Mary
How to move the issue off dead center? Tough question. I must confess that I am not an expert on this issue of HOA and Master Deeds for Condos as those are in the private property rhealm. It seems there are fundamental underlying issues:
1) Why did the authors of the Master Deed say no dredging? Is it to support (natural ecosystem, fishery, frogs,), Y, Z or deter disturbing that ecosystem, vegetation disruption, or Z.
2) Is the prohibition of dredging the pond to support or deter those elements still relevant to the original intent of the authors? What has changed? Why does it matter?
3) Is dredging the pond in your personal best interest but not the interest of the HOA? How does the HOA benefit from dredging such that it is worth it to amend the Master Deed?
Another option is to bring in an objective expert around the health of the pond and to provide a balanced set of reasons for dredging or not dredging. Hiring a real estate attorney with experience in amending Master Deeds could also help the board understand the costs/process/timeline. It is reasonable and expected for the HOA to hold firm to the Master Deed until it can be amended.
My questions above are rhetorical; to make a point about the costs/benefits and reasons for prohibiting dredging in the initial deed. We do have water resource educators that might be helpful in framing some of the ecological issues with dredging or not dredging a detention pond within the Condo if you were to submit another question.
Best Regards,
Mary
Mary:
I just finished the Citizens Planner course and I was recently appointed to the Planning Commission of my township. I have had a long running issue with my HOA regarding maintenance of the common space detention pond behind my house. Here is the history:
We moved her from Texas 11 years ago. When we moved in, we could not even see the pond from our house because it was so seriously overgrown with invasives in the back yard. We were accustomed to and preferred a well maintained yard. So, we set about cleaning it up. We removed several downed trees a compost pile that included all sorts of trash and debris, Bittersweet and Buckthorn. We actually love our yard now that it is clean and neat, but there are a couple neighbors that hate us for cleaning our yard. They wanted the "up north" feel when they looked at our yard. Oh well. . .
I joined the HOA Board about 9 years ago and was on the board for 7.5 years. I was able to at least get periodic maintenance of the pond into the budget. As volunteers we cleaned an area of invasives at the entrance of the pond so that Aqua Weed (a pond treatment company) could get their boat into the pond for treatment of the duckweed. I resigned from the board about 2.5 years ago in order to pursue dredging of the pond. I didn't want anyone to cry conflict of interest. The pond is now only about 1.5 feet deep and about 2-3 feet of muck. Aqua Weed can no longer get their boat into our pond because it is too shallow.
Here is the big issue. Our HOA Master Deed and Bylaws actually state that we will NEVER dredge the pond. It also states that the pond is subject to a conservation easement. I'm a real estate broker and have never been able to find where that easement was filed. I got the original documents from our township and the Master Deed and Bylaws were actually stamped as approved from the township, but I just think someone did not do there job and really review them. Anything natural or manmade will eventually need maintenance. Our Master Deed has many deficiencies and we also seriously need them to be updated. The State of Michigan (EGLE) has made a site visit to our pond and I was actually successful in being awarded a minor project permit for the dredging of the pond (good for 5 years) issued by EGLE. I have paid the engineer that originally worked on the development of the site condo development to also do a site visit. He issued an opinion letter agreeing with EGLE that the pond needs to be dredged. It was originally a natural pond 50 years ago and then our subdivision was developed 30 years ago and they input 3 storm water inlets and 1 outlet - at that point it became a detention pond.
Our Municode for the township calls for maintenance agreements for detention ponds, but the township does not want to get involved in any HOA dispute.
How do I go about getting this maintenance to move forward? I realize we will need to edit our Master Deed and Bylaws. I just feel that if the township would issue a letter to the HOA Board stating that maintenance is needed and expected - it would move our board to action.
What would you suggest? I appreciate your input.
Belinda Billings
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On Thursday, May 9, 2024 at 01:16:14 PM EDT, Ask Extension <<personal data hidden>> wrote:
