# Need advise/input on sidewalk vs HOA



## BuckHunter31 (Jun 13, 2013)

When we moved in to our home a few years ago, the sidewalk above the sewer opening was starting to cave in. It was sunk down a good 2-3'' below the normal sidewalk height.

Now over the years, it has sunken in much much more. The neighborhood is a new one (6-7 years old) and is still incomplete. We are at about 60-70% built. There are many other places throughout the neighborhood that has this sidewalk problem. 

Also now the roads are starting to sink in at spots as well. Especially at the foot of the hill on my road by the stop sign where it levels out.

So here's the dilemma. I've contacted the HOA about this and am told it is MY responsibility to fix the sidewalk. 

I've called the county and the city and neither are claiming the roads in the neighborhood since it is incomplete. 

Does this sound correct? Is it my responsibility to fix the sidewalk in front of my house? I don't own it. I don't pay taxes on it. It's not my property. Well that's the way I see it.

If it is my responsibility to have it re-poured, y'all come on by and see the new toll booth, a nickel to cross the pink sidewalk 

*** I am not interested in "that's what you get for living in a neighborhood with an HOA" and yada yada yada... We will more than likely be moving in a few years back to a secluded area outside of a neighborhood. Buying this house was more of a financial move than any. Something short term with great benefits. But the HOA head ache is killing me  

-------Pics to come-------


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## rip18 (Jun 13, 2013)

Read your HOA legal documents...they are probably referenced in your deed and you agreed to them when you purchased the property...

It is VERY common in many HOAs that each landowner is responsible for the portion of the sidewalk that crosses their lot...

It is also common for the developer to be responsible for some things (like road, sewer, water, etc.) until a certain percent build out at which point it is transferred over to becoming a HOA responsibility...

Typically, the streets are accepted by the city/county once the development is permitted...


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## BuckHunter31 (Jun 13, 2013)

And just so you know, me and the HOA do not get along very well. Since we moved in, we have felt nothing but jealousy and hatred from our neighbors (who one just so happens to be the PRESIDENT of the HOA) Not one person welcomed us to the neighborhood. After we had our second child, no one stopped by. No one waves. It's terrible. Can't help it we have made wise financial decisions and are able to buy a home next to you so young  

We have been falsely accused a good bit on matters "breaking" HOA rules. After multiple accusations and threatening letters with fines from the HOA attorney, I stepped up my game and let them know the next false accusation we receive, the HOA will be receiving a call from my attorney and a charge for harassment. Hate to be like that, cause Lord knows that's not how I am, but a man can only take so much.


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## BuckHunter31 (Jun 13, 2013)

It stated no where in our rules or deed about us being responsible for the sidewalk. I have read and read them over and over. I've let others read them and still no where is it stated that I am the go to guy for the job. Thought I was told something about "bond" money the neighborhood has for such jobs.


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## BuckHunter31 (Jun 13, 2013)

Notice the property line is slighty left center on the cave in. So I guess my neighbor would also be somewhat responsible if it is indeed the homeowners responsibility. Funny how I am the only one getting hammered about it. I drove through the neighborhood and counted numerous other sidewalk problems. Some worse than mine.


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## Todd E (Jun 13, 2013)

I can almost guarantee you that the issue is going to be more than just a sidewalk issue. Water has washed a good deal of dirt out and caused the sidewalk to collapse. Pipe issue, dirt issue, plus concrete re-pour.     $$$$$.$$

County storm drain issue in my opinion !!!


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## BuckHunter31 (Jun 13, 2013)

That's what I'm saying. I can have my buddy re pour it for cost but it will eventually happen again. The road is washing away underneath. A 6 year old residential road shouldn't look like that. There is a culdesac up the hill so not much traffic comes through. This has got to fall back on the builder who is still building. The road needs work.


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## rip18 (Jun 13, 2013)

I understand exactly where you are coming from.

Unfortunately, it may not be explicitly written in your HOA rules OR your deed.  What both the HOA rules and the deed may reference are a set of restrictive covenants that were filed with the county clerk's office by the developer prior to the neighborhood being developed.

That reference may be a single sentence or it may be a paragraph, but I bet it's there...

Arguing with an HOA is an exercise in futility...but if you are going to do so, then you need to back off a hair, go ahead and see a real estate lawyer (or you can do it yourself or have somebody else do it), to pull your deed, the development's restrictive covenants, and the HOA rules and assess your situation from a pragmatic, non-biased point of view...  Then figure out the best way to go forward.

Again, you need to look at the covenants, not just your deed and HOA rules...


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## BuckHunter31 (Jun 13, 2013)

Also the other sections of sidewalk on both sides of the cave in are hollow. I can stomp on them and hear an eco and feel vibrations. Before long there won't be a sidewalk.


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## BuckHunter31 (Jun 13, 2013)

If it was just a cracked sidewalk, then fine, no big deal. But the roads seem to have improper drainage. And in result the road and sidewalk is effected. Until the run off problem is corrected, fixing the sidewalk is useless to me. Am I wrong?


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## BuckHunter31 (Jun 13, 2013)

Thanks rip for the advice and input. I'm going to talk to a magistrate judge next week with the deed, HOA rules, pictures and anything else I can get my hands on. I figure thats the next best step for me. Maybe they can shed some light on this matter.


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## one hogman (Jun 13, 2013)

The same thing happened to my yard[ several years ago] close to the street ad there was a storm drain collector just like you have there with a man hole, The storm drain pipe is either rusted [ Metal Pipe] or the tower was built incorrectly and storm/ rain water is eroding the area instead of just going down the drain,It will get a lot worse, I was lucky and Called the County Commission chairman who was up for reelection and it was fixed within three months, it all depends on the county and the $$ and man power they have for this, Mostly $$ as they contract a lot of it out. Good luck.


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## dwhee87 (Jun 14, 2013)

That is definitely a drainage issue. My guess would be the pipe was either never grouted to the concrete drop inlet, or has come loose and there is a gap that is allowing water to scour the dirt away, creating a void space, allowing the sidewalk to settle. If you can pull the manhole cover off, you may be able to see and photograph the problem.

I would photo document heavily, send any and all communication to the HOA and builder in writing, certified, return receipt requested. 

Next, I'd get an attorney, as Rip said above, and have them (after reviewing the covenants, etc.) write letters to both the HOA and the builder, demanding that the repairs be made, or you will pursue legal action. You may want to specifically look for a lawyer that specializes in HOA law.

The problem will continue to get worse, and the longer it waits, the more expensive it will be to repair. I would guess that there is some case law where a builder or HOA has been found negligent and has been sued for loss of value/property damage for ignoring issues like this.


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## Miguel Cervantes (Jun 14, 2013)

#1 -  Until the developer is done and has turned the subdivision over to the county / city, y'all have no business having an HOA. The developer should be the agent of record controlling covenants until this happens. 

#2 - IF the developer has turned the subdivision over to the county, then it is their infrastructure to repair, unless otherwise stated in your HOA or County ordinances. 

You clearly have a failed storm drain (pipe has been breached, clogged, whatever, to cause subterranean erosion. You have several choices to be used individually or all at once. 

A) Federal ADA regulations mandate that no sidewalk can have a vertical difference of more than 1/4", 1/2" is the max leniency they'll consider. Once degradation occurs then personal injury becomes a liability to the owner of the sidewalk. If it is on the County / City right of way, they own it unless otherwise stated.

Just a year or so ago the City of Atlanta tried their best to put the repair of sidewalks off on the residents. They had a better case than most, because in most places in the CoA the RoW ends at the back of the curb, especially in older parts of town. However, a blind man tripped and was injured on a broken section of sidewalk. He sued and I believe the settlement was around 3 million when he won. The CoA is now trying to firm up their legal wording to avoid that in the future and have residents become liable for sidewalk repair. 

B) Get the media involved. Local newspapers, regional newspapers, TV news media. Local Boards of Commissioners HATE this kind of exposure and tend to get off of their duffs and act when this comes up.

C) Make sure you have a stout Umbrella Liability policy. You can get 2 million in coverage cheap, and until this is settled you don't want to risk carrying the burden of being sued for a bad sidewalk if someone gets hurt.

D) Lawyer up. Your HOA is a corporation, and as such, all board members and members of the HOA (you) should be covered under that title, but if neither is willing to back you on the fight, then it's time to go renegade (get mid-evil on their rears)

The squeaky wheel gets the grease, the more noise you make in the most places, the more someone will want you to shut up and the problem will magically get fixed. Warning, don't just act all crazy and scream at people. Google is your friend, familiarize yourself with similar cases and results and speak from reference, not from emotion or anger.

I am not an attorney, but at some point in the last 30 years I am sure I stayed at a Holiday Inn Express.


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## 6ofus (Jun 14, 2013)

Miguel Cervantes said:


> #1 -  Until the developer is done and has turned the subdivision over to the county / city, y'all have no business having an HOA. The developer should be the agent of record controlling covenants until this happens.
> 
> #2 - IF the developer has turned the subdivision over to the county, then it is their infrastructure to repair, unless otherwise stated in your HOA or County ordinances.
> 
> ...



^^This^^  Like Miguel said, if you have a HOA, then chances are, the streets and sidewalks have already been turned over to the city/county.  If that is the case, what you are seeing the contractor working on is the next phase.  It has nothing to do with where you live.  

Start calling the city/county.  Contact their inspectors, engineers and don't stop until you get to the top.  Then keep calling.  That is the only way to get things done with local government.


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## win280 (Jun 14, 2013)

Miguel Cervantes said:


> #1 -  Until the developer is done and has turned the subdivision over to the county / city, y'all have no business having an HOA. The developer should be the agent of record controlling covenants until this happens.
> 
> #2 - IF the developer has turned the subdivision over to the county, then it is their infrastructure to repair, unless otherwise stated in your HOA or County ordinances.
> 
> ...



This^^^^^^^.I highlighted a key word.


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## Wild Turkey (Jun 14, 2013)

1. You dont own the sidewalk and its not on your property. Its in the road right of way which belongs to the city/county.
2. The city/county accepted ownership of the road when they granted a building permit for the houses.
3. They have to make the repairs plain and simple.


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## Miguel Cervantes (Jun 14, 2013)

Wild Turkey said:


> 1. You dont own the sidewalk and its not on your property. Its in the road right of way which belongs to the city/county.
> 2. The city/county accepted ownership of the road when they granted a building permit for the houses.
> 3. They have to make the repairs plain and simple.


None of this is accurate information.


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## dwhee87 (Jun 14, 2013)

Another thing you can do, and this works really well if they still have a sales office on site, is to make up a sign that the HOA and Builder do not honor their commitments to maintain the common areas and infrastructure, then park yourself on the sidewalk in front of the office or entrance on a Saturday morning with your sign.

Clark Howard's advice on this is to make sure the sign contains only facts. 

Miguel's comments above, especially adding the liability policy, are good ones. Start pestering the county engineering department.


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## sinclair1 (Jun 14, 2013)

Miguel hit that one, only thing I would add is if its 6 years old the original developer probably went belly up if its not finished. 
It will probably take a lawyer just to see where the paper trail stands. There are probably separate phases in there and the developer who built your phase might be out and turned it over.


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## Meriwether Mike (Jun 14, 2013)

Drive in four posts to 4 foot above grade and block if off with caution tape so someone does not trip and sue you and or the HOA. Follow prior advice.


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## MTMiller (Jun 14, 2013)

This is easy.  Wild Turkey is correct.  The sidewalk is not on your property, it is in the county/city R/W.  Not your responsibility, it is the city/county's assuming they have accepted the roads during final platting.  If you want to PM your address to me, I'll pull the final recorded plat for you and e-mail it back to you that shows your property lines and the R/W.  I've designed many subdivisions and don't recall ever seeing one where the sidewalk is not in the county/city R/W.  That would not be typical.  Just let me know.


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## BuckHunter31 (Jun 14, 2013)

Thanks MT. I actually talked to a family friend who has dealt with these matters for her entire career. She is very knowledgeable on building codes, enforcement, HOAs and the like. 

She advised it is in the Right of Way and is not my responsibility. She pulled my address on her system and it's showing up in the County's system. I pay my taxes to the County so that makes sense. 

I called the County earlier last year about the problem with the sidewalk and I got a simple, "the road is not in our system so it is not our problem" 30 second conversation. So I'm still not sure what the deal is. Maybe things have changed since then.

She also advised if the neighborhood is still under development then either the builder or county/city is responsible. She advised since we are still under developed that the HOA has no pull. She said this is a simple, cut and dry case where no one wants to take responsibility and is trying to pass the bill off to someone else. She knows a higher up in road maintenance and codes/enforcement and will be looking into it for me. 

There may be some weird law/rule/deed we are missing here but she advised it is not my problem to worry about. She may have it all wrong but she seemed very knowledgeable and up to date on laws/codes. Hopefully this is the case. 

Bottom line, she said it is in the right of way / common ground where anyone is allowed to walk. She said if I was to fix it myself, if someone hurt themselves walking on it I could be held responsible since I did the maintenance. She advised not to touch it until she gets me all the details. Glad I didn't go with the pink quickrete idea  I just find it hard to believe that each homeowner is responsible for the sidewalk crossing their property. I mean what do I pay $650 a year for  That neighborhood pool and grass service must be price gouging 

Hopefully I will find out more details. I really don't want to make a big fuss about it. I just want it fixed so my kids can ride their bikes without going off road.

Thank you to everyone who took the time to comment. I will keep everyone UTD on the results.


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## The Longhunter (Jun 14, 2013)

BuckHunter31 said:


> Thanks MT. I actually talked to a family friend who has dealt with these matters for her entire career. She is very knowledgeable on building codes, enforcement, HOAs and the like.
> 
> She advised it is in the Right of Way and is not my responsibility. She pulled my address on her system and it's showing up in the County's system. I pay my taxes to the County so that makes sense.
> 
> ...



Pony up the $100-200 to get an attorney who specializes in HOA law to review your documents, and give you a written opinion.  Then proceed accordingly.

Unless your "family friend" is a licensed attorney she is doing a whole lot of unauthorized practiced of law.


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## BuckHunter31 (Jun 14, 2013)

She is no attorney but knows the law and is looking into it for me contacting those who actually deal with such problems currently for a living. She is also putting me in contact with an attorney who specializes in HOA conflicts. Don't think she is doing anything "unauthorized." Everything she has pulled is public records. She's just giving me her take on it based on her years of experience in that field along with contacting the right people. I don't want to fork out $200 for an attorney I don't need. They county may come out and fix it after I talk with them. We shall see.


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## MudDucker (Jun 15, 2013)

BuckHunter31 said:


> I don't want to fork out $200 for an attorney I don't need. They county may come out and fix it after I talk with them. We shall see.



Your post says you need legal advice and then you post this.  So what you are wanting is free legal advise from amateurs who have no right  or business to give legal advise to get you out of a legal problem.  Hmmm, now that should work out real well for you.


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## Sterlo58 (Jun 15, 2013)

MudDucker said:


> Your post says you need legal advice and then you post this.  So what you are wanting is free legal advise from amateurs who have no right  or business to give legal advise to get you out of a legal problem.  Hmmm, now that should work out real well for you.


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## BuckHunter31 (Jun 15, 2013)

Looking for someone who might know the ropes on the matter. Not really "legal" advise, just someone who might know how to deal with this. I have definitely found a few who are knowledgeable on the topic. Hopefully some of yalls input will get me in the right direction to work out well. Either way, after I talk to the County, I'll either need to get an attorney or not, depending on their response.


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## dwhee87 (Jun 15, 2013)

MudDucker said:


> Your post says you need legal advice and then you post this.  So what you are wanting is free legal advise from amateurs who have no right  or business to give legal advise to get you out of a legal problem.  Hmmm, now that should work out real well for you.



Well, MD, he DID put "legal" in quote marks...


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## BuckHunter31 (Jun 15, 2013)

And thank you to those who have taken the time to post helpful information. It really got me thinking on who to call and things I could do to help the situation.


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## Miguel Cervantes (Jun 15, 2013)

The biggest issue I see is $650 a year for HOA dues. That indicates far bigger problems. The one I just finished working on for two months is over 300 homes with a pool, tennis, golf course and the houses are upwards of $750k and their dues aren't near that much. You may want to hire a proctologist along with that attorney to fix several problems at once. Oh, and as far as what your friend, the expert, and a few others in here say. Try not cutting the grass on the right of way and let us know how that works out for you.


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## BuckHunter31 (Jun 15, 2013)

dwhee87 said:


> Well, MD, he DID put "legal" in quote marks...



I changed it for y'all. Maybe now you won't get   ADD running ramped I tell ya. 

I shouldnt have put legal advice, rather than advice from those who have dealt with this first hand and/or know the legality of the situation. 

Thanks again for your helpful help. God bless


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## BuckHunter31 (Jun 15, 2013)

Miguel Cervantes said:


> The biggest issue I see is $650 a year for HOA dues. That indicates far bigger problems. The one I just finished working on for two months is over 300 homes with a pool, tennis, golf course and the houses are upwards of $750k and their dues aren't near that much. You may want to hire a proctologist along with that attorney to fix several problems at once.



Hey I hear that!  I hope it goes down once the neighborhood is completed.

One can only hope. No matter, I don't see us here for much longer. Atleast I hope not


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## fish hawk (Jun 15, 2013)

BuckHunter31 said:


> This has got to fall back on the builder who is still building.
> 
> 
> 
> ...


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## BuckHunter31 (Jun 15, 2013)

Lol you got that right. Trust me, I've already repaired some things a 6 year old house shouldnt need. Thank goodness I was taught how to swing a hammer young


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## Doc_5729 (Jun 16, 2013)

FWIW and MHO - I don't have a dog in this fight and I'm not taking sides or giving advise. 

BUT I once worked for the goberment and the jurisdiction I was employed in DID NOT ACCEPT final plats for subdivisions UNTIL they were completely built out.

By the sounds of it, the county you live in operates by the same procedure and that's the reason the roads are not in their system.

UNTIL the county accepts the final plat, the DEVELOPER is responsible for any failures.

And before anyone questions that, YES I HAVE BEEN THERE AND TESTIFIED IN COURT UNDER OATH.

Now the best advise on this thread came from Miguel Cervantes. Lawyer up!!!

Good luck on solving your problem.


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## The Longhunter (Jun 16, 2013)

Doc_5729 said:


> FWIW and MHO - I don't have a dog in this fight and I'm not taking sides or giving advise.
> 
> BUT I once worked for the goberment and the jurisdiction I was employed in DID NOT ACCEPT final plats for subdivisions UNTIL they were completely built out.
> 
> ...



That's the way it is in the counties around here.  Just for this very problem.  The county doesn't want to get stuck with the maintenance of substandard streets and sidewalks.  Until the county officially "accepts" the streets, they belong to the developer.


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## dwhee87 (Jun 17, 2013)

BuckHunter31 said:


> Hey I hear that!  I hope it goes down once the neighborhood is completed.
> 
> One can only hope. No matter, I don't see us here for much longer. Atleast I hope not



HOA dues are like taxes. They never go away, and they only go up. I live in a 525 home golf course community, and mine are, including the latest "special assessment" to upgrade the pool deck, are right at $1000/yr. That is up by almost $300/year since I moved in here in 2007.


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## BuckHunter31 (Jun 17, 2013)

dwhee87 said:


> HOA dues are like taxes. They never go away, and they only go up. I live in a 525 home golf course community, and mine are, including the latest "special assessment" to upgrade the pool deck, are right at $1000/yr. That is up by almost $300/year since I moved in here in 2007.



That is so exciting. I can't wait! 

I will never live in another HOA run communtiy. I know some like it, the pretty entrance, the pool, the tennis courts, the club house... It's all nice, but not worth having some jackleg watching your every move ready to fine you. If I want to plant a new shrub or tree in my yard, I want to be able to without having to ask permission. Never again. Give me my big front porch and tall fescue/clover/weed yard back. A little while longer and it'll pay off.


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## scott44 (Jun 17, 2013)

Several years ago in metro atlanta the standard residential right of way was 25 ft either side from the center of the road.The county took responsibility 1yr after the development became 75% built out.Could be different now though.That included sidewalks and utilitys


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## Dog Hunter (Jun 17, 2013)

BuckHunter31 said:


> And just so you know, me and the HOA do not get along very well. Since we moved in, we have felt nothing but jealousy and hatred from our neighbors (who one just so happens to be the PRESIDENT of the HOA) .



I bet just from this statement the HOA knows you are not responsible.  Or they would have forced your hand already.

I agree with it not being turned over to city yet.  It requires a certain amount of build out before they can justify unkeep. Go to city hall and they can tell you.

Also, the liability policy would not be a bad idea until you determine who truly is responsible.  Crazy things happen with plats and land lines.  You could possible have a small piece of that property and be held liable also.


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## Wild Turkey (Jun 17, 2013)

Miguel I deserve an apology.

"None of this is accurate information."

Unless its a gated community no city or county ownership which do occur in NE ga. The orchard in cornelia etc. Mr. Lovell's pile of oops.

Preliminary plat approved prior to building roads utilities etc.
Developer builds them and gets inspection approval.
either developer fully paves roads and gets final plat approval and city/county accepts road etc as their own. Or developer bonds final paving. 
Then and only then building permits are issued.
Your home required a building permit and therefore under normal conditions the roads/sidewalk would be city/county property.

Now there are backwoods exceptions to every rule and they are quite prevalent in Alabama, NE GA. and other strange places that operate outside the norm which is the municipality's fault and not yours.


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## MTMiller (Jun 17, 2013)

You got it figured out correctly.  You could call the county engineer or public works director (depending on how your county is set up) and speak with him/her directly.  I don't think they will tell you it is not their responsibility to fix it if they have accepted your subdivision roadway for perpetual maintenance.


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## Miguel Cervantes (Jun 17, 2013)

Wild Turkey said:


> Miguel I deserve an apology.
> 
> "None of this is accurate information."
> 
> ...


Just because a building permit is issued to a builder has absolutely nothing to do with the county or city taking ownership of the roads and right of way infrastructure. Just as others have stated, and typically, a minimum of 75% of the housing build-out has to be completed and the developer meet all requirements the municipality lays out for him before they will accept that responsibility.


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## scott44 (Jun 18, 2013)

The developer has to bond the development...streets,pipe work,retention ponds etc before he can sell lots to a builder.But the issuance of a building permit doesnt mean the county has taken responsiblity for the streets...hence the bond.


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## Wild Turkey (Jun 18, 2013)

It is triggered by the final plat and typically there is a 1 year warranty period. Final plats are done in phases typically.
The Bond is pulled if the developer fails to complete the work.

Ive done hundreds of these across Ga and Alabama over the last 27 years and never heard of a 75% rule. With Hoa turnover, it depends on the developers lot count and the wording in the docs. Most developer lots count 3:1 over homeowner lots so the developer can control the Hoa till late in the game.


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## Dog Hunter (Jun 18, 2013)

Wild Turkey said:


> Miguel I deserve an apology.
> 
> "None of this is accurate information."
> 
> ...



As a 8+ year member of my city's Pand Z and council, I can give a little input here.  You are wrong on this.  Course, I guess we are the backwoods exception as you say.  We have a 75% buildout before we will except streets, etc.  

Towns and cities do this for a reason.  If I subdivision doesn't fill up it is hard to support roads, etc. on a minimum amount of tax revenue.  The building collaspe is a prime example of why we do this.

From the backwoods of SE GA.


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## Dog Hunter (Jun 18, 2013)

scott44 said:


> The developer has to bond the development...streets,pipe work,retention ponds etc before he can sell lots to a builder.But the issuance of a building permit doesnt mean the county has taken responsiblity for the streets...hence the bond.



Yep


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## grouper throat (Jun 18, 2013)

Call the county engineering dept. The next problem I see is the HOA isn't going to want the County engineer's plans to solve the problem the way it needs to be remedied (ditched and flowed elsewhere to collect instead erode) because it will be deemed unsightly. My former boss fought back and forth with his HOA about it.

If isn't taken by the county yet then find you a ready-mix truck and fill that sucker up.


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## Wild Turkey (Jun 18, 2013)

Thats sad. When a city allows building permits to be issued without a bond, final plat and all inspections good, they are doing a disservice to their cityzens. So the city balks on taking over the public space and leaves the homeowner to deal with it. But I bet the city still charges property tax dont they.
Like usual the goverment is looking out for their $$ and not who they are supposed to.

And yes all city/county's ordinances vary especially the rural areas.


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## sinclair1 (Jun 18, 2013)

I think the main problem is the relationship you have with the HOA president, I could just call mine and he would handle it all since its the right of way. The people that want to be HOA president long for getting involved in this type of stuff.


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## scott44 (Jun 18, 2013)

That will turn out to be the developer or the county's problem  cause it's in the R/W


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