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Community green space inspires legal questions

DEAR BENNY: I live in a development where all the homeowners belong to a homeowners association.

The developer built the subdivision around a common pond. He has left green areas around the pond and throughout the development. Recently the developer has started procedures to turn the homeowners association board of directors over to the homeowners.

My concern is the use of the green areas by the homeowners adjacent to some of the green areas. They are placing play equipment and tree houses on this public land. Also, some are putting underground dog-control wires onto the green areas.

I am all for using this land, but I fear there is potential liability for all the homeowners if someone is hurt using the equipment or by the dogs.

Is it possible for someone getting hurt on the green areas to sue not only the owner of the dog or equipment, but also the homeowners association? – Tom

DEAR TOM: Unfortunately, in today’s world, anyone can sue anyone for anything. And they often get away with large verdicts.

Lawyers who specialize in litigation look for the deep pockets. And I suspect that your homeowners association has deeper pockets — or at least more insurance coverage — than most of your fellow homeowners.

If homeowners in your association are installing playground equipment or dog-control wires on their own property, then I doubt that the association would have liability unless such activities are prohibited — or require board approval — in your legal documents.

On the other hand, if these activities are being installed on community property, then if someone were injured, the entire association could have potential liability.

Have you discussed this with your board of directors? They should ask their legal counsel for an opinion as to whether the association would be liable for these situations. They should also ask their counsel what steps they can take to require that all homeowners remove anything they have installed on the common areas.

Are you alone on these matters or are there other homeowners who have the same complaints? It always helps to have a large group of homeowners sign a protest petition. Boards usually respond faster when they see that a number of owners are complaining.

DEAR BENNY: We have a big problem with one of our absentee homeowners who lives out of state and is an attorney.

We recently reworked our covenants as homeowners after the developer turned over the property to us. Basically, all we did was take out the word “developer” and inserted “the homeowners association.”

We sent out ballots to all the homeowners, which had a seal on it (notarized impression) as well as a return envelope with a code on it to prove it was an original ballot.

Well, the attorney is challenging the favorable vote based upon the fact that the ballot didn’t require a signature. – Norm

DEAR NORM: Does your association have an attorney? Presumably, the lawyer assisted you (or should have) in preparing the amendment to your covenants.

Every community association has legal documents. In a condominium, they are usually called the declaration and the bylaws. In a homeowners association, they are called covenants, conditions and restrictions, or CC&Rs. In cooperative housing, co-op owners rely on the articles of incorporation and bylaws.

Each of these documents will contain language as to how they can be amended. While I can’t give you specific legal advice, in my opinion the other attorney’s position makes no sense.

If you followed the legal procedures for amending your documents, what difference does it make if there are or aren’t signatures on the ballot? Actually, the signatures help you in determining the validity of the owner who submitted the ballot.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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