By: Michael Rome, J.D.
This article is not a substitute for consulting with legal counsel in your State regarding the specific fact situation.
Retention & detention ponds help the stormwater management in a subdivision. Retention ponds hold runoff water, and usually stay wet. Detention ponds simply slow down water that eventually drains off into creeks, rivers, or surrounding ground. Detention ponds are often dry until a large rain accumulation. Both of types of ponds pose many issues for community associations:
Who is responsible for maintaining the land surrounding the pond?
Who is responsible for removing silt build-up and debris from the pond?
Who is responsible for safety, such as protective fences around the pond?
Who is responsible for insect control, such as mosquitoes?
These questions can only be answered on a case-by-case basis. Gone are the days when the County or City owned these ponds. Although there may codes that obligate the County or City to do some maintenance, it is more likely that the responsibility will fall upon the association or property owners bordering the ponds. For instance, the Cobb County code provides that any retention or detention pond within a homeowners' association will not be publicly owned or maintained. Code Section 50-193(a).
If these ponds are not owned and maintained by the local government, then the adjoining landowners, and/or the association, are going to be responsible for maintenance. In order to determine responsibility, you must first establish who owns the ponds and bordering land. Secondly, all relevant documents must be reviewed to find out if they assign particular duties to the association.
The plat of the subdivision filed on the County Deed Records by the Developer will indicate what areas of the pond are owned by the adjoining Lots.
It is possible that the Lots include ownership of the whole pond. In this circumstance, the property owners are responsible for maintaining the pond, unless the Declaration of Covenants requires the association to maintain the pond.
The more likely scenario is that the Developer has transferred ownership of the pond to the association. In this case, the association would be responsible for maintaining the pond and any surrounding area owned by the association.
Once it is determined who is responsible for various duties, what are their exact obligations? It may be necessary to build a fence around the pond to protect others from injury. The pond may need occasional maintenance in the form of removing silt build-up, debris, and algae. With the onset of the West Nile Virus, some ponds may also need insect control.
There is also the question of maintenance for the bordering areas, including the cutting of grass and weeds. Depending on the location of the pond, there may be some Aesthetic consideration that would then require landscaping.
Every association should be aware of their duties for maintenance of retention & detention ponds. To determine the extent of the association's ownership and obligations, the association should obtain competent legal counsel.