Drainage Facilities
Q. I have a few questions regarding storm water basins within developments. Our subdivision was established in 1995 and at that time the City was just starting to implement measures to comply with the Chesapeake Bay Preservation Act. The City required new subdivisions to implement storm water retention measures. The subdivision plat shows the ponds on individual lots. In order to ensure these ponds were maintained, the Declarant implemented Homeowner Declarations stating the ponds and embankments are designated as Common Areas and are to be maintained by the Association. Does the homeowner have any real claim to these areas since they are essentially required by law to be in place? Could the lot owner fill in the part of the bond on his property? If the Association is responsible for them as Common Area, shouldn’t they provide liability insurance to protect all members? Finally, is there any reprieve for the owner for the taxes which they must pay on the property?
A. You pose some good questions that we have heard before about drainage facilities, which are usually referred to as BMPs (a term we could explain, but it wouldn't clear up much!). For purposes of this answer let's just call them ponds. Without examining your documents we cannot provide finite answers and your documents do sound a bit unusual. Usually it is clear that the ponds are situated on various lots as shown on the subdivision plat or they are on common areas, often designated as preservation areas. The maintenance issue is most problematic when the ponds are located on parts of several lots with no indication of who is to do what. This has not been the methodology of the cities in the past seven years or so; rather, the ponds are generally designated as common areas and there is a plat notation on the subdivision plat which requires the formation of a homeowners association (HOA) to maintain the pond and the area around it.
When the developer has completed the lot sales and the formation of an HOA, title to the common areas should be conveyed to the HOA by deed recorded at the courthouse. Sometimes this step is overlooked and generally, when it is discovered, can be fixed.
The HOA should carry liability insurance providing coverage for all common areas. The state law provides that common area parcels are not taxed in that the appraisal done for the assessment of your lot takes into account these common areas.
Now let's look at the issues presented by the situations where the ponds are not common area. This presents the issue of who is going to maintain it. Some older plats did not cover this point and indeed the pond(s) did serve the entire community. This requires some document amendment and cooperation of the homeowners. Apparently your recorded declaration does say that the ponds and surrounding area are common areas to be maintained by the association. In your case, it is not clear what was intended with regard to title, but an attorney might conclude that a deed to the association was intended and should be done. If not, at least the maintenance obligation of the association seems to be clear. The liability stays with the owner of the lot unless the pond is conveyed to the association and your homeowners insurance should cover you, but you should check with your insurer. The real estate tax associated with the portion of a pond on your lot would be negligible and is really not a factor with which you should be concerned.
Your subdivision plat probably contains some notes about these ponds and would prohibit the elimination of them by filling them in or altering them; further, your neighborhood would likely experience some serious flooding during significant rain events and the elimination of the ponds would be regretted to be sure.
We hope this helps some, but it sounds like you need some legal review of your situation.