Geologic Hazard Abatement Districts (GHADs)
and
Homeowners Associations (HOAs)

Introduction

Geologic Hazard Abatement Districts, or GHADs, were created in California by State Senator Bob Beverly in 1979 to enable local residents to collectively mitigate geological hazards which pose a threat to their properties (California Public Resources Code 26500-26601). GHADs are designed to handle long term abatement and maintenance of real property potentially threatened by earth movement.

Homeowners associations (HOAs) are organizations comprised of local property owners within a designated planned unit development, neighborhood, or other self-designated entity, which have been chartered as an organization subject to certain bylaws and mandatory membership. Today, HOAs are typically created at time of development by Codes, Covenants and Restrictions attached to the real property deeds of built-out parcels, usually for purposes of maintaining responsibility for upkeep of common areas, such as open space and privately-owned improvements, such as streets, play areas, private parks, tennis courts, or runoff collection, conveyance and discharge improvements. California law requires HOAs to be maintained, elect officers and carry out responsibilities spelled out by HOA charter.

Geologic Hazard Abatement Districts

The Beverly Act requires that a California Certified Engineering Geologist (C.E.G.) prepare a "plan-of-control" which sets forth the rationale for:

In order to develop a Plan-of-Control, the C.E.G. must first investigate the site history, historic performance, inspections, surveys, engineering analyses (where appropriate), and conclusions in regards to which factors are primarily responsible for observed or perceived problems. Occasionally, a geotechnical engineer may be involved in assisting in computational slope stability analyses.

Once available data has been synthesized, the senior CEG usually convenes a working group comprised of various consultants to discuss: 1) possible short-term remedial measures; 2) possible long-term remedial measures; 3) Respective costs of such measures; 4) risk assessments to establish long-term costs; and 5) annual maintenance, inspection and administrative costs.

Advantages of GHADs

GHADs offer long term "guarantees" with respect to security of property values. They provide a means of documenting property conditions, maintenance and repairs. Property values of GHAD parcels are typically higher than adjacent parcels without GHAD protection. GHADs are a form of casualty settlement which perpetuates itself, thereby preserving property investment. GHADs are also looked upon very favorably by lenders and governmental agencies. GHADs can also require certain governmental agencies to be involved, both in terms of peer professional review and/or fiduciary contributions. Public agency participation is common when publicly-owned streets, sewers or storm drains cross the GHAD area.

Disadvantages of GHADs

There are some possible long term disadvantages of GHADs as well. For one thing, GHADs cannot be easily dissolved (see Las Tunas Beach GHAD vs Superior Court [1995] 38 CA4th 1002, 45 CR2d 529). GHADs can be added to by a vote of 51% of the adjacent property owners, forcing some reticent parties to be a part. GHADs cannot compensate members for "soft" losses, such as emotional distress or diminution in value. GHADs are an entity that can be enjoined in legal action by disgruntled members or adjacent parcel owners, increasing operating costs.

Homeowners Association Maintenance Plans

Most HOAs in hillside residential communities area created at time of development to establish responsibility for long-term upkeep and maintenance of common areas and improvements, such as weed abatement for fire protection, private streets, emergency vehicle access ways (EVAs), open space areas, and drainage improvements, such as v-ditches, drop inlets, culverts, pipes, subdrain systems and like. HOA responsibilities are usually spelled out in a charter and membership is typically mandated through CC&Rs. HOAs are required by State law to name officers, hold meetings, charge applicable fees, discharge minimal annual upkeep, and provide documentation of same.

Maintenance plans for HOAs in hillside areas work similar to GHAD plans-of-control, in that specific short-term and long-term maintenance responsibilities need to be spelled out and the costs associated with such activities estimated when the plan is formulated.

Maintenance plans usually begin with an inventory of all available information and preparation of a easy to understand as-built base map, founded upon actual site conditions. Orthophoto topographic maps or spatially corrected digitized aerial photographs usually work best, so lay persons can easily see where particular items of maintenance interest are located.

Various "layers" of information are typically lain upon base map, depending on the volume of available data. Computerized Geographical Information Systems (GIS) graphics routines are usually employed, such as: AutoCad, ArcInfo, MapInfo or Intergraph. Some of the map layers typically prepared include:

Advantages of HOAs

HOAs are a mechanism by which the aggregate total of parcel owners can jointly share in long-term maintenance activities that jointly benefit the entire development. It also sets forth a mechanism where such activities cannot legally be ignored, until some major problem occurs. By collecting annual fees, a "slush fund" can be accumulated that can better defer high costs normally associated with earth movement damages, which only occur once every 8 to 15 years, on average. If a well organized plan is put into place, and maintenance kept up to date, a great deal of storm-related damage can be avoided. In the past, many residents ignored any measure of upkeep, with the assumption that offsite maintenance was "someone else's responsibility". HOAs also serve to make better stewards of local residents, causing them to keep a closer eye on condition of common area improvements.

Disadvantages of HOAs

HOAs are legal entities which cannot be ignored. The Courts have determined that homeowner's written consent to extension of CC&Rs is irrevocable (La Jolla Vista Mesa Improvement Assn.. vs La Jolla Vista HOA [1990] CA3d 1187, 269 CR 825). In the past, most homeowners were spatially aware of those neighbors whose parcels bordered open space areas or creeks, often prone to flood or earth movement damage, and assumed that these individuals bore greater responsibility to maintain such offsite areas. In addition, buyers of new homes often assume that the developer is "on the hook" for any expense incurred for maintenance or storm damage, for up to 10 years after certificate of occupancy. HOAs are usually responsible for long-term upkeep, and a developer of real property may be be culpable for the HOA's inaction and/or negligence, and may be able to bring countersuit against the HOA forcing it to pay for repairs, as well as litigation.

HOA maintenance plans usually only address common area improvements. Soil movement, due to expansion, settlement or creep, on an individual's property, are usually exempt from consideration for upkeep and repair by HOA. A common complaint in hillside HOAs is replacement of borderline fences and wood retaining walls. Though expensive to replace, these improvements are usually situated on the private parcel, or assumed to be within the private parcel (good faith improver tort), and their maintenance or replacement is not usually considered eligible for HOA expenditures. An exception would be HOA board action to replace or repair everyone's fence bordering a common area, which can be granted through special election. All residents must be treated equally, regardless of the trouble they might foment.



J. David Rogers' Experience with GHADs and HOAs

J. David Rogers has actively dealt with GHADs and HOAs since 1984. He has worked with: