The devil, they say, is in the details. And at least one attorney believes the details of the year-old Uniform Planned Community Act could become a nightmare for some of his clients.
Attorney William H. Poole Jr. of York said the act expands the definition of a planned community to include small single-family developments, and that could cause some trouble down the road for those residents. And Poole said his clients aren't prepared to deal with bureaucratic and legal snafus that could result from the change.
The Uniform Planned Community was an effort to consolidate a number of laws which governed condominiums and other types of residential developments, according to Poole. The act included a definition of a planned community, something that had not existed previously in the other laws.
That definition is the crux of the problem, according to Poole.
Say, for example, you move into a development with a restrictive covenant in which all of the residents have agreed to pay for any future repairs to a retention pond in the development. If the pond needs repairs in the future and you are assessed fees for that, you will now fall under the act.
What triggers the act, Poole said, is the creation of a homeowners' association and the assessment of fees. So, if the retention pond holds water and you are never assessed any fees for repairs, you're not subject to the act, according to Poole.
Home buyers who ask for disclosure statements with special homeowners' association covenants might run into problems because the agreements are often made orally and no documentation exists, Poole said.
Poole also believes a municipality may have some financial responsibility under the act. For example, he said, if a homeowners' association builds a retention pond and later abandons maintenance on it, the municipality may be forced to assess taxpayers a fee to pay for any pond repairs, if needed.
UPCA's chief draftsman David Haas, an attorney with the Philadelphia law firm of Duane, Morris and Heckscher, sees things differently.
According to Haas, UPCA was an effort to serve as a "comprehensive guide" for the creation, governance management and marketing of all planned communities, especially those communities that didn't fall under previous state regulations governing condominiums and cooperatives.
The definition of a planned community in the act, according to Haas, is one having common facilities or improvements, such as streets, water management, recreational facilities, etc., whose maintenance or repair is the responsibility of the development owners under terms of covenant, easements or agreements imposed on the property.
A planned community must also be "declared" -- plats and plans filed say the area is being developed as a planned community -- and common elements are defined, Haas said. Also, the act creates a governing body for the planned community.
In addition, other interests are spelled out: rules governing ways the community can be expanded or changed; time requirements for selling any rights and responsibilities to common areas; anything agreed to be done for the community association must be done or have a promise of its being completed, including a third-party guaranty, bond, escrow or letter of credit.
The UPCA protects the rights of property buyers, Haas said. Disclosure statements containing a community description, options reserved by the property's owners, financial information, how the community is organized and other critical information are the chief means of buyer protection. Any deposits made on the property prior to its purchase remain in escrow until closing.
"The UPCA reflects a balancing of the interests of developers, lenders, homeowners, managers of planned communities, government authorities and those who provide service to planned communities in Pennsylvania," according to Haas. "While it does create substantive requirements for existing and newly created planned communities, it places significant emphasis on disclosure as a means of promoting market-based controls."
Haas said UPCA's greatest contribution is that it serves as a "comprehensive framework for all common interest ownership communities and developments in Pennsylvania ..." and that it replaces "a hodge-podge of common law schemes based on private restrictive covenants with no consistency, community-to-community or project-to-project."
Pete Andrews, a York attorney with Countess, Gilbert and Andrews, shares some of Poole's reservations about UPCA.
"The biggest problem is that it is a disruption of the orderly transfer of property," Andrews said. "Sellers don't know what obligations are to be met. Buyers don't know how to meet the proper obligations."
Andrews said the bill is meant to impose a condominium-like set of rules on any development. Andrews sees UPCA as very similar to existing state condominium and resort regulations. "It almost mirrors them," he said. "The structure is the same, it's complicated, difficult for people who didn't know they were in a planned community to comply."
Andrews said trying to use condominium regulations to resolve a "relatively small" problem of defining and regulating properties that were planned with common ground is part of UPCA's problems.
Andrews also said many area home buyers and homeowner associations don't know about UPCA's regulations. Realtors are aware of the regulations, he said.
Rob Sowers, residential and condominium manager and vice president for Clabell Management, part of Lancaster's Horst Group, said UPCA is not a problem for his business. Sowers manages a number of homeowners associations and 3,500 condominiums.
"Most statues are written to protect people from people who would take advantage of them," Sowers said. "UPCA is not at all a problem for us. We've always done business that way."
Sowers said UPCA helped clarify some nebulous issues surrounding planned communities by bringing regulations governing homeowners associations more into alignment with those covering condominiums.
He said Horst/Clabell was already using disclosure statements and other documentation similar to UPCA's requirements.
"We found that this was really just good business. The new act didn't do anything all that strange," Sowers said.
"I'm not a big believer in lots and lots of rules," Sowers said. "But the Condominium Act helped clarify some significant problems before this. UPCA is a good attempt to get everything under same umbrella."
Walt Zehring of Rausch Real Estate in Lebanon manages nine residential units. Zehring said he had no problems with UPCA regulations. However. keeping people up on current information within the homeowners association is not easy unless people get active and go to association meetings, Zehring said.
Zehring could understand why municipalities would have problems with UPCA, especially when they might be asked to cover costs of properties formerly governed by association rules.
Haas said UPCA's future is linked to an education process about the bill. As more people become aware of the bill's provisions and how these rules affect them, the process will get smoother.
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