Understanding Hot Springs Village Declarations – 2nd Article in a Series

By Lloyd Sherman

July 2023

Understanding Hot Springs Village Declarations Part 2 key

The subject of this article is to address a policy instituted by the POA Board in their June 2023 meeting. This proposed change was introduced and voted on in the same meeting not allowing any time for research or property owner input.

What is Mission Creep? Before I address the issue with this policy change, I want to address why this is important to ALL property owners, but especially to those who own lots. “Mission creep is a gradual shift in the objectives during the course of a military campaign, often resulting in an unplanned long-term commitment.” What that means to property owners of Hot Springs Village is that regardless of the intention of actions taken, the long-term impact could be significant. This month it is this, next month is another this, and so on. Unless it is dealt with on the front-end, the issue will continue to grow.

Modification of Chapter 4, Article 1, Section 3 of Policy Guide – Looking at this change for most would be, it doesn’t affect me, so why should I care? The answer is simple! Because once the rock starts rolling down the hill, you are not going to stop it. The problem with this change having been implemented relates back to exactly the same reason the first article was pointing out. IT VIOLATES OUR DECLARATIONS. While I believe the intentions to be honorable and in the best interest of saving the POA money doesn’t change the fact it violates the Developers intentions and founding document. So, what did the policy change say that violates our Declarations? Under background, it states, “Staff has evaluated options available to the POA to protect against unforeseen expenditures related to infrastructure required tied to individual lot construction in undeveloped areas.” The issue is that all 34,000 lots that comprise Hot Springs Village are covered by the same set of Declarations, and you can’t violate the Declarations and in essence discriminate on lots that haven’t had the infrastructure developed. Now, you can work with those owners and attempt to provide a solution (like a better lot for instance), but you can’t refuse to do what the Declarations indicate that the Developer and now the POA are responsible for.

Up to this point, the cost of providing services has been borne by the POA (through the assessment process); this change is moving that cost over to the lot owner, which is not what they agreed to when they purchased the lot.

So, in this policy change the “this” is transferring a previous expense of the POA to the property owner. The next “this” was an attempt to separate the POA-mandated grinder system alarm to be separated from the control panel and become the responsibility of the property owner. What’s next if our Declarations can just be ignored or misunderstood? I’m sure we will soon hear that the law firm says it is okay, but when was the last time you saw a lawyer representing a differing view that didn’t back up their client? Who, BTW, is us, the property owners.

So, let’s once again review what our Declarations say about the “services” that this series is addressing:

Page 1 of the Declarations: “Desires to provide for the construction of the facilities aforesaid and also desires to provide for the preservation of the value and amenities in said community and for the maintenance of said private ways, private roads, private lanes, and private pathways, and public streets, public roads, public ways and public lanes, as well as the water system, sewer system, lakes, golf course, playgrounds, permanent parks and other common facilities and limited common facilities; it goes on to say each and all of which is and are for the benefit of said property and each owner thereof;. The Declarations clearly state that all of the infrastructure needs (roads, streets, etc.) are the responsibility of the POA to be paid for from assessments. Nowhere does it say some or those the POA finds unserviceable!

Article I, Section I, (c)- “Common Properties” shall mean and refer to those areas so designated upon any recorded subdivision plat of The Properties and intended to be devoted to the common use and enjoyment of Owners of The Properties; and shall also mean and refer to any improvement designated by the Developer as Common Properties and intended to be devoted to the common use and enjoyment of Owners of The Properties, and shall specifically include, but not the exclusion other improvements which may hereinafter be designated as Common Properties by the Developer, the following:

Ways, roads, lanes and paths not dedicated to the public,
Golf Courses,
Permanent Parks,
Permanent Recreational Plots,
Water System,
Sewer System.

This section contains all of the items that are typically seen as infrastructure required for a new home or subdivision.

Article VI (Plan for Construction and Maintenance of Common Properties), Section 2 (Way of Access for Vehicles. “The Developer (and now the POA) shall be obligated to construct and pave all ways of access for vehicles in any subdivision of the Properties within a period of twenty-four months after completion by the Association of the utility system which is it obligated to complete in such subdivision. The cost of the maintenance, capital improvements, operation, taxes and other expenses incident to the way of access for vehicles, regardless of whether dedicated to the public or as Common properties, shall be paid from assessments against each Lot and Living Unit as herein provided. When reading this, or quite frankly any other section of the Declarations that address responsibilities, it appears clear that any attempt by the POA to totally exclude properties or charge the lot owner for the services required, is in direct violation of the Declarations.

Article X, Section 4. Special Assessments for Capital Improvements with Vote of Members. the Association may request and levy a special assessment limited in time and specifically for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of the water system, sewer system. Shall have the assent of 51% of the votes of each class of members.

In the first article, I attached a highlighted copy of the Declarations with some of the information reported here if you are inclined to want to read them for yourselves. Failure of both management and the POA Board of Directors to understand these Declarations should never occur. [Click here to see the first article.]

As a property owner advocate, I am not attempting to make things more difficult or expensive for the POA, but these Declarations were set in motion for a reason, and before any policy change is done, they need to be understood. It is not our fault that when the POA negotiated to take over the function of the Developer, they didn’t provide adequate funding for the future cost of money to handle build-outs, but the fact that they received money for this very set of activities is not the fault of the property owners.

For those who want to suggest that I should have taken this to the POA or Board first, I did, with zero response. I also previously engaged management in providing input, and it was made very clear to me that they knew what they were doing, and I didn’t need to be telling them how to do their jobs. So exactly why would I want to continue exposing myself to that kind of confrontation?

If property owners want those wanting to move to the Village to be subject to this in the future, the Declarations can be amended by a majority vote of the property owners. But for those who have been paying their assessments, maybe for decades now, how fair is continuing to make it more costly to become a resident of HSV make any sense? Edited: The Covenants and Restrictions of the Declarations “can be amended by the affirmative vote of two-thirds of those voting in an election for such purpose.”