What is the name of your state? Pennsylvania
Hello! I live in a planned residential development with a HOA organized under the Pennsylvania Uniform Planned Community Act as a Pennsylvania Flexible Planned Community. Our community is still in the process of being built, as such we haven’t reached the milestone where the HOA is turned over to the residents; therefore, the HOA is still under the declarant’s control. I’m looking for legal advice/opinions on a certain clause in the declaration, which indicates turnover will occur after 2-years of inactivity.
Background: The declarant develops the land after obtaining all permits/approvals and sells ready to build lots to a home builder. The home builder then contracts with future owners and builds the home, then transfers title to the owner. The builder and developer (declarant) are two different entities. The declarant has completed development of Phases 1 through 3. The builder has completely built and sold all available lots/homes to date in the first three phases. The developer has applied for a fourth phase; however, they have not received approval and the last application with the local municipality was in January 2021.
Residents are frustrated with the lack of consideration to concerns/maintenance items of common elements. Essentially the HOA does not respond/consider members concerns or requests. These include mainly landscaping of common elements and repairing lighting fixtures in common elements. It is also very difficult for anyone to get required alteration requests reviewed. In reality, it’s difficult to even call/email with anyone, including a third-party property management company hired by the HOA to deal with such requests.
Our HOA board consists of 4 members, 3 of which are appointed by the declarant. The fourth member was elected by the members; however, this elected individual gets out-voted/overruled on any non-required action items. The elected individual is also not even provided contact information for any of the other members (instead they are only provided with contact information for an employee of the declarant). Said employee also attends any required HOA meetings with proxy votes for the other three declarant appointees.
Our development is 49% complete based on the total built units to the total planned units.
Question: In reading the HOA docs, there is a section describing control of the HOA and the process for replacing declarant appointees with elected members. In this section, it discusses a possibility for the HOA to be turned over if “…two (2) years after all Declarant’s have ceased to offer Units for sale in the ordinary course of business, or two (2) years after any development right to add new Units was last exercised.”
The last sale of a unit was 9/8/2020 (declarant sold lot to builder), and 12/29/2020 (builder sold improved lot to owner).
There have not been any development rights to add new units. The fourth phase that was applied for to the municipality was included in the total number of planned units.
Based on this, is there the possibility that we can push to get the HOA turned over? We would really like to make some changes and get some maintenance/upkeep of the common elements taken more seriously.
What would this process look like? I’m assuming they wouldn’t just hand it over willingly once two years have passed. I’m also assuming this changes nothing to the total number of planned units and that the declarant would still hold title and development rights to that land, but they would lose control of the HOA and the new board would be elected.
I’ve contacted the builder, and they indicated back in April of this year that they had no lots to sale in this community. Since they never followed through on their applications for the next phase, there also aren’t any more lots that have been created, since the application for the fourth phase included a subdivision plan.
How strong of a case would this be since the documents read “in the ordinary course of business”. I understand there was a global pandemic in this timeframe, but real estate was experiencing record sales. In fact, the same builder completed and sold out of multiple other communities nearby during the same time when there was no action taken in our community.
Ultimately, we just want to have a say in getting things taken care of around here, as well as having actual contact with our board. If it takes going to court and getting the declarant removed due to the 2-year clause, I am willing to do it.
I’d plan on reaching out to other members for support, and then take this to a local attorney…I just wanted to get a legal perspective on this and if you think there’s something there with this 2-year clause, or if it’s likely a waste of time and we are just stuck waiting until we get to 75% complete.
Hello! I live in a planned residential development with a HOA organized under the Pennsylvania Uniform Planned Community Act as a Pennsylvania Flexible Planned Community. Our community is still in the process of being built, as such we haven’t reached the milestone where the HOA is turned over to the residents; therefore, the HOA is still under the declarant’s control. I’m looking for legal advice/opinions on a certain clause in the declaration, which indicates turnover will occur after 2-years of inactivity.
Background: The declarant develops the land after obtaining all permits/approvals and sells ready to build lots to a home builder. The home builder then contracts with future owners and builds the home, then transfers title to the owner. The builder and developer (declarant) are two different entities. The declarant has completed development of Phases 1 through 3. The builder has completely built and sold all available lots/homes to date in the first three phases. The developer has applied for a fourth phase; however, they have not received approval and the last application with the local municipality was in January 2021.
Residents are frustrated with the lack of consideration to concerns/maintenance items of common elements. Essentially the HOA does not respond/consider members concerns or requests. These include mainly landscaping of common elements and repairing lighting fixtures in common elements. It is also very difficult for anyone to get required alteration requests reviewed. In reality, it’s difficult to even call/email with anyone, including a third-party property management company hired by the HOA to deal with such requests.
Our HOA board consists of 4 members, 3 of which are appointed by the declarant. The fourth member was elected by the members; however, this elected individual gets out-voted/overruled on any non-required action items. The elected individual is also not even provided contact information for any of the other members (instead they are only provided with contact information for an employee of the declarant). Said employee also attends any required HOA meetings with proxy votes for the other three declarant appointees.
Our development is 49% complete based on the total built units to the total planned units.
Question: In reading the HOA docs, there is a section describing control of the HOA and the process for replacing declarant appointees with elected members. In this section, it discusses a possibility for the HOA to be turned over if “…two (2) years after all Declarant’s have ceased to offer Units for sale in the ordinary course of business, or two (2) years after any development right to add new Units was last exercised.”
The last sale of a unit was 9/8/2020 (declarant sold lot to builder), and 12/29/2020 (builder sold improved lot to owner).
There have not been any development rights to add new units. The fourth phase that was applied for to the municipality was included in the total number of planned units.
Based on this, is there the possibility that we can push to get the HOA turned over? We would really like to make some changes and get some maintenance/upkeep of the common elements taken more seriously.
What would this process look like? I’m assuming they wouldn’t just hand it over willingly once two years have passed. I’m also assuming this changes nothing to the total number of planned units and that the declarant would still hold title and development rights to that land, but they would lose control of the HOA and the new board would be elected.
I’ve contacted the builder, and they indicated back in April of this year that they had no lots to sale in this community. Since they never followed through on their applications for the next phase, there also aren’t any more lots that have been created, since the application for the fourth phase included a subdivision plan.
How strong of a case would this be since the documents read “in the ordinary course of business”. I understand there was a global pandemic in this timeframe, but real estate was experiencing record sales. In fact, the same builder completed and sold out of multiple other communities nearby during the same time when there was no action taken in our community.
Ultimately, we just want to have a say in getting things taken care of around here, as well as having actual contact with our board. If it takes going to court and getting the declarant removed due to the 2-year clause, I am willing to do it.
I’d plan on reaching out to other members for support, and then take this to a local attorney…I just wanted to get a legal perspective on this and if you think there’s something there with this 2-year clause, or if it’s likely a waste of time and we are just stuck waiting until we get to 75% complete.
