Why should my HOA pay to clean a private pond that borders only a handful of homes?

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: We are a condominium association. We have a common element pond that is maintained with association funds.

There is another pond that we do not own but that backs up to three or four homes in our community. For over 25 years, no community funds were used to clear or clean this pond. However, the pond is poorly maintained, and there has been zero luck in getting in touch with the owner of the pond. Our president told one of the owners that lives on this pond that he was going to get our pond cleaning company to clean it as an association expense.

Is it illegal to use community association funds to maintain this property that we do not own? Signed, S.W.

Dear S.W.,

A condominium association is generally responsible to maintain the common elements. It’s expressly stated in the Condominium Act, and most governing documents establish that responsibility, as well (though there are always some exceptions, particularly with respect to certain limited common elements).

As for any other costs, whether they are a proper common expense would depend on how the declaration of condominium describes the board’s power, authority and responsibility.

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Some governing documents grant the board broad rights to use association funds for any expenditure that benefits the overall welfare of the community. I can certainly see arguments that cleaning a stagnant pond, even one that is not owned by the association and that only borders four homes, would benefit the entire association.

Particularly, this pond could easily be a breeding ground for mosquitos that would travel far enough to impact more units than just those bordering the pond. And, to the extent that the pond can be seen from other units and common areas, the simple unsightly nature of the pond may be to the overall detriment of the membership.

You would need to review your condominium declaration and see exactly how it describes the board’s authority to spend money, and how broad those rights are.

Question: We live in a 55 and over condo community. As residents here we are mandated by our phase to join a third-party country club. We are then required to sign a contract with the club for life.

In their contract, which they provide, we have a paragraph that permits us to exit the club by providing a year’s written notice, so long as our dues are fully satisfied.

The country club is now stating because we have an agreement with our phase, they do not have to accept our letter and honor their part of the contract. They insist our agreement with our phase supersedes our separate contract with them. Our agreement with the county club is a signed, dated, notarized and recorded document. As senior citizens we feel like we are being bullied and our rights being ignored. Is there anything you can suggest or advise moving forward? Signed, R.S.

Dear R.S.,

Mandatory membership communities are becoming increasingly common, both communities that were built with the intent of being mandatory membership, as well as communities that amended their governing documents to implement mandatory membership.

As you know, your condominium declaration (in an HOA it would be a declaration of covenants, conditions and restrictions) establishes your rights and obligations. It is both a covenant and a contract, and it binds you as the property holder, and your association as well.

Mandatory membership is when one of the covenants in a declaration obligates owners to be a member in good standing of a private, third-party country club. The country club, often a not-for-profit as well, operates for the benefit of the homeowners, and sometimes for outside members, too.

If you fail to abide by the covenant and maintain a membership with the club you would be in violation of your declaration, and the association could enforce that covenant against you, just like any other — with fines, suspension of use rights, or a lawsuit asking a judge to order you to join the club.

Separately, you have a contract with the club establishing the terms of your membership. Your contract states that you have a right, upon notice, to terminate your membership. But if you did so you would be in violation of your condominium declaration.

While the club is saying they do not have to abide by the language in your contract, that’s not technically true. The club is bound by its contract, and arguably it must allow you to terminate your membership; at which point you would immediately be in violation of your own declaration and would be forced to re-join the club (likely with a new initiation fee).

My best guess is that they are just using shorthand when they are telling you that they don’t have to honor the termination provision — frankly speaking, they should probably have a different contract for homeowners that doesn’t contain such a provision, at all.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Legal expert weighs in on pros, cons of HOA maintaining private pond