When a developer breaks ground on a new community, it is also responsible for establishing the homeowners association that will eventually govern the neighborhood. In the early days of most new developments, HOAs are run by the developers themselves. These developers typically draft the Declaration of Covenants, Conditions, and Restrictions, often including special protections for themselves to make it difficult for homeowners to assert claims against the developer.
Once the required number of houses or condominiums has been sold, usually between 75% and 100%, the developer is required to turn control of the HOA over to the homeowners who own homes there. The homeowners will hold an election and choose a new board of directors to take over control of the community. This transition from developer to homeowner control is a critical milestone in the growth of a community. It’s a time filled with great potential but also rife with pitfalls.
What are Common Elements?
Homeowners associations are responsible for much more than enforcing community standards and collecting regular dues and assessments. They’re also responsible for the management and upkeep of the community’s common elements. While definitions vary based on a community’s governing documents, common elements are generally the parts of the community not included in any single property and shared by everyone in the community.
When control of the community is turned over to the homeowners, that first elected board of directors should have an expert inspect the common elements to ensure they are free from defects. Such an inspection allows the community to request necessary repairs if any defects are found. If the builder refuses to perform the repairs, or will only perform minimal patching, the community has the information it needs to decide whether to pursue a formal claim against the builder for the defective conditions.
If your community is struggling with making this transition, or if you’re a homeowner concerned with what you think are defects in the design or construction of your home or your community, don’t wait to reach out and speak with a construction defect lawyer.