A Matter of Land | Help! Fed up with my homeowners association, what can I do?

Good day readers, today we look at questions from a reader and my subsequent response.

Dear Mr Francis,

I am writing on behalf of a group of homeowners who bought into a 50-unit gated community in Spanish Town a year ago. Before we moved in, a handful of homeowners had taken control of their units, and established a Home Owners Association (HOA) to communicate with the developers. In emailed messages, the ‘PRO’ communicated that their tenure was temporary. We were told by other residents that they did not vote in this HOA.

After the development was partially handed over, this HOA continued to operate. Six months ago, at a HOA meeting, they announced maintenance costs, inclusive of security. We were told that this particular security company, who we later established had close ties to members of the HOA executive, was the cheapest bidder, and costs were cited for other areas, including pool maintenance, water and electric bills, garbage collection and property taxes.

No documentation has ever been provided by the HOA about their purchases and the use of our contributions. Instead, purchases are done ad hoc, and many expenses are placed under ‘miscellaneous’.

Three months ago, the developers installed solar street lighting. This was expected to eliminate the Jamaica Public Service (JPS) street lighting costs. However, we continued to pay for the budget item ‘JPS’. There is no legal meter for water, yet we continue to pay for the budget item ‘NWC’ (National Water Commission), in exorbitant sums.

The property is also not registered with the parish council, yet, we continue to pay for the budget item ‘property taxes’. Homeowners have also been barred from using the clubhouse unless we rent it out, yet, we continue to pay for the budget item ‘clubhouse maintenance’.

We keep getting promises that there will be documentation to support the expenses, to no avail. What happens instead is that for each budget presented, expenses are moved around to give the impression that costs are static, or increasing.

At a recent meeting, called after residents protested, the HOA announced that maintenance fees would be increased come July 1 to now almost $10,000 per unit. The justification was that the security company had asked for an increase, seven months into their tenure.

When the expenditure was questioned, homeowners were told that the budget was “not just for security”, and items, like the purchasing of shovels, chlorine for the pool and a door for the security post, were listed as the reasons for the increase. We were also asked to vote for some members of the executive, but interestingly the position of HOA president and some key others would remain static for two years, a determination decided by some rubric that we are not privy to.

We are concerned, because despite numerous requests, no documentation has been provided to support the HOA’s claims. Regarding security, especially, nothing was presented to show that other companies bid on the contract.

Many homeowners walked out before the meeting ended, and before the budget was ratified. Our constitution states that all homeowners are required to vote on issues, but many times the votes are either completed by the executive only, or by less than half of homeowners, and contrary information about actual figures provided in the minutes.

What can we do in this regard? We have been told that sanctions would be applied for the homeowners who do not pay maintenance, including blocking access to the development.

– Fed Up Property Owner

Good day, Fed Up Property Owner,

Thanks for your question. This is a real problem that you have outlined to me concerning yourself and the many other residents. Based on your question, I can determine that your development is not a strata development but a regular gated community.

This being a regular gated community, it is not governed by the Strata Titles Act that would give you guidance as to how to proceed in dealing with this matter, and also would allow you to contact the Strata Corporation who would intervene in the matter for you, as they are guided and empowered by the law (Strata Titles Act) to act in matters as this. You, however, have no such recourse, as in the gated community you all have registered title for your property and it will also include that you have an undivided share in a lot that is used as a common area, such as the lot that the clubhouse is built on.

HOMEOWNERS AGREEMENT

What I suggest you do is first peruse your homeowner’s agreement – you should have received one that should have been signed by all the proprietors of lots in the development, they have the laws and by-laws governing the development – then you need to rally the other proprietors to force your HOA leadership to do as you all require.

First, there should be an election to determine the leadership and that should be in the home owner’s contract/by-laws. So you the resident need to force an election so you can select those whom you want to lead you. The other things concerning payments for electricity and water and land tax are matters that may necessitate you and the other residents seeking the services of an attorney to handle the matter on your behalf. I know that you should be able to visit the Spanish Town Municipal Council to find out about the land tax situation.

Finally, no owners or his workers or his guests can be denied access to go on to their property by the HOA, as this would be an illegal action. They can deny you the right to use of the amenities, etc. However, access to one’s property cannot be denied. The property is yours and you have to access it and they cannot within law deny that right.

I recommend that an attorney be consulted and you and the other disgruntled proprietors seek counsel from him/her on the matter and have your attorney dialogue with them on your behalf. I hope your mater will be resolved soon and amicably.

Keep sending your questions and comments; let’s continue to explore A Matter of Land, Until next time, traverse well.

 - Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. Email feedback to editorial@gleanerjm.com or craig_r_francis@yahoo.com or on Facebook at Precision Surveying Services.