Homeowner/Developer Liablility

[FATWEASEL]

What is the name of your state? NC

I am a homeowner in a subdivision where the streets, and common areas are still under the control of the developer. The neighborhood has covenants but is not, yet, a HOA.

Part of the neighborhood covenants specifically bans dirt bikes, four wheelers, go karts, etc.. from all parts of the neighborhood except the home owners personal property.

Recently, some homeowners have allowed their children and their visitors children to ride their dirt bikes and four wheelers in the street. Complaints have been made to the developer to enforce the covenants but nothing has been done. Calls have been made to local police but they have expressed that there is little they can do since the streets are not state maintained, even though the main street connects two state roads and this street is considered a public vehicular right of way (deemed by the local HP).

Most recently, two children (visitors) were hurt while operating dirtbikes on the neighborhood streets. One, when a boy flipped a homeowners dirtbike while trying to avoid a car. The second, when a young girl flipped a dirtbike when she ran into the bike of another child. Both children received severe cases of 'road rash'.

#1. Can the homeowners force the developer to enforce the covenants of the neighborhood?

#2. Can the homeowners be held liable for injuries incurred on the public areas of the neighborhood or is the developer liable?

#3. If the developer is liable, can he use the homeowners dues that have been collected, to fight a suit against him?

Thank you.

[IndianaOwner]

Seriously, what is the big deal?

The homeowners will not be liable if that is your concern.

Regardless of who controls the HOA, an individual property owner usually can enforce the restrictions via a lawsuit seeking an injunction. A firmer approach with the developer may be in order.

It is unfortunate that some kids got hurt, but that is irrelevant and not really your concern anyway.

[FATWEASEL]

Originally Posted by IndianaOwner

Seriously, what is the big deal?

The homeowners will not be liable if that is your concern.

It is unfortunate that some kids got hurt, but that is irrelevant and not really your concern anyway.

Seriously, the big deal is...actually there are several BIG DEALS.

BD#1. I have an investment in this neighborhood...my house. I didn't invest in a race track and won't allow my house or neighborhood to lose monetary or personal value because of some inconsiderate or unconcerned parents.

BD#2. I started this thread because I didn't know if the neighborhood homeowners, as a group or individually, could be held responsible for someone's injury on neighborhood property. If we/I could be held liable, I consider that a big deal, given the circumstances.

BD#3. I'm REALLY not concerned if a kid gets hurt. I got hurt all the time as a kid but I got hurt on my parents property. My parents would have killed me themselves had I behaved like a dumb little sh!t out in the street or around other peoples property. I DON'T, however, want to see a kid get killed by a car simply because of absentee parents and I especially don't want to be the person driving the car that kills the kid when they drive, ride, or fall in front of me. THAT would be a bid deal.

[FATWEASEL]

Originally Posted by IndianaOwner

Regardless of who controls the HOA, an individual property owner usually can enforce the restrictions via a lawsuit seeking an injunction. A firmer approach with the developer may be in order.

1. Is the injunction directed at the developer to enforce the covenants or the homeowners to comply with the covenants?

2. What kind of costs to get an injunction?

3. Can an attorney tell if an injunction is worth pursuing ie...can or cannot get one, or is that strictly up to a judge?

4. If a developer or homeowner does not comply with an injunction, who determines and what could the consequences be?

5. "A firmer approach with the developer**************.", like what?

Thanks!

[IndianaOwner]

Well, the dirt bikes probably are not affecting your property value to any degree. I can agree that the noise can be a nuisance. Your concern regarding liability are misplaced.

You need to look up the plat info to see if the street is a public right of way. If so, then the HOA doesn't own that real estate even if they choose to maintain it.

[IndianaOwner]

Originally Posted by FATWEASEL

1. Is the injunction directed at the developer to enforce the covenants or the homeowners to comply with the covenants?

2. What kind of costs to get an injunction?

3. Can an attorney tell if an injunction is worth pursuing ie...can or cannot get one, or is that strictly up to a judge?

4. If a developer or homeowner does not comply with an injunction, who determines and what could the consequences be?

5. "A firmer approach with the developer**************." like what?

Thanks!

Getting an injuction against your neighbors would cost money and would deem you to be not a nice neighbor. A judge would force them to comply with an injunction --- they have many tools at their disposal to compel compliance with their orders.

A firmer approach is sending a threatening letter to the developer laying out the consequences such as you will turn the matter over to your attorney to pursue.

[FATWEASEL]

Originally Posted by IndianaOwner

Well, the dirt bikes probably are not affecting your property value to any degree. I can agree that the noise can be a nuisance. Your concern regarding liability are misplaced.

You need to look up the plat info to see if the street is a public right of way. If so, then the HOA doesn't own that real estate even if they choose to maintain it.

Not that this changes things but the noise IS unbearable. It's not just one or two kids. When one kid sees another one riding, they ALL have to ride. It starts as one or two but ends up being six to ten kids. The neighborhood is small (52 homes) and the noise bounces around quite a bit. It's loud enough that my wife and I can't carry on a conversation at normal talking level on our rear deck when they're all out riding. It's like a tennis match...back and forth and back and forth and back and forth... This usually goes on for a couple of hours but has been as many as five or six hours if the weather is nice. What really gets me is that the oldest kids are probably 11-13 years old but the youngest ones are 5-6. Who lets their 5 year old ride a mini-bike in the street...and for hours on end... and unsupervised at that???

So what is the deal if the street is NOT a public right of way? Humor me!

I appreciate your time and responses.

[IndianaOwner]

First, I would hazzard to guess that the road is in fact a public right of way and is subject to the normal laws of the road including if you need a driver's license etc. to run dirt bikes on the road. You need the police/sheriff to address it.

Second, if it is not a public road, but utterly private property, then you'll need to seek an injunction from a court to enjoin these people from doing what they are doing which is in violation of the restrictive covenants. However, at this point in time, I would pursue it with the developer first. Threaten legal action against the developer to get him off his arse. Also, video tape, with sound, the nuisance.

[IndianaOwner]

See also,

[url]http://en.wikipedia.org/wiki/Injunction[/url]