Fencing and trespassing

KC,

If I understand your post, you were given approval to install a vinyl fence that requires post holes to be dug, and now the ground is frozen so that you can't dig holes.

Instead of asking for an approval for some other kind of fence, you went ahead and installed an unapproved fence. Now the board is asking you to remove the unapproved fence. I know its easy to see things after the fact, but it was probably a mistake to do something without approval.

There should be a process spelled out in your CC&Rs for dealing with a maintenance issue. Most written processes give time frames for action, and a provision for a hearing if you challenge the findings. Be sure that the board is following the rules. In the end, you will likely have to remove the unapproved fence.

Thank you very much for your response. I have looked through the CCRs and there isn't anything regarding timeframes. There is a variance option but obviously they won't approve it under that. There is no time frame because the CCR's say the mediation and correction does not apply to them only to residents. So, I bought a property and now I may have to board my horses somewhere for 8 to 12 weeks because of it? The association was really rude at the beginning and I felt upset because I tried to get it into the ground before the ground froze. I figured they gave someone else a year to fix thier fence so why can't we get a variance to get us through winter? You are absolutely right, I should not have installed it but I have had too many nightmares boarding my horses at other facilities including leg injuries costin me thousands of dollars.

So is, tresspassing on my property legal in the CCR's for them to come out and remove the posts themselves? I am losing sleep over this.

Why couldn't they put something in the clause that states new owners have the winter period for adjustment.

I grew up in subdivisions with CCRs and even enforce rules myself as an inspector but I have always been realistic and provide support to help people meet code. Augh, I can't wait to sell this house and move out of here. CCRs are posted at www.eaglebendliving.com

Thank you for your response. I agree with you, however, I have responded that way and they are still pushing. I say "they" but there is only one person on teh committee even though the CCRs state there are supposed to be 5 people on the board. It appears I will have to take this to the newspaper. Are there any state laws as to what HOA's have to follow concerning details and timefraomes? We are also figuring out that the HOA member treats men differently than women. We are in the process of retaining a lawyer but the CCRs say we can get reimbursed for the fees. I don't know if the courts can fine the HOA or not.

KC,

"Legal" is seldom black and white. Yes, in some cases it would be legal for the Association to take action to enter a member’s private property and remedy a situation. However, such an action is extreme and would have to be preceded by a number of documented steps.

I am not a lawyer, and you may want to get legal advice. However, I recommend writing a letter and sending it certified mail. In the letter you should say:

• You are sorry that you took action to build a fence without approval
• You are willing to work with the association to remedy the situation as soon as practicable
• You want to be given the same consideration as other homeowners who have needed to remedy a fence problem
• The weather does not permit you to fix the problem until the snow melts and the ground thaws
• You are prepared to sue the board if they take unreasonable actions

It could be that making sure the Board understands your position will take away the threat of preemptive action on their part and let you sleep at night. Communication is a good thing.

This forum is wonderful help. Thank you all. However, section 16.4 says that the HOA cannot be considered a claim. So, I take it that it's for neighbors in conflict. Thank you for looking at the CCRs with me.

It says in 16.4 that mediation doesn't work with the HOA in terms of enforcement issues. I have already asked for a variance and they are telling us no. They want to talk with our lawyer. I'm going to do what you suggest and type a letter, certify mail it,and hope for the best. I hope to hear from a lawyer today. I will hold off on going to the newspaper if they respond and are willing to wait for the ground to thaw first thing or if they follow their own mediation steps they say they are not required to follow.
I have saved all my emails when we purchased the house in the end of October showing demeaning remarks, lack of response,and general rudeness while we tried to scurry to get the fence and plan put toghether for their approval. They finally approved vinyl the week it turned 32 degrees and below. We just got the dog fence up they approved a few days before the snow hit.

Thank you again for your help. I think this thread is complete Have a great day

And if there is no support and it gets very nasty,then I am going to cite every issue with every lot. This is what I have found out so far...
Here is my summary I find for this subdivision

From what I know there are two or three other civil suits that have occurred in the subdivision before our time and after reading the CCRs we are not the only ones with outstanding issues. Neighbors are not treated equally when it comes to fences as I have heard from another neighbor. I cannot control the weather and it is impossible to get vinyl fencing in frozen ground. I have been an inspector for over 12 years and I have always been realistic and helpful in ensuring citizens meet code. The HOA here is nothing like that. I am not able to sleep with the issue at hand. Currently, there is a new barn being built on a river lot that does not meet code, propane tanks are not hidden per code, junk vehicle not used is on a lot, ungraded roads and a steel shed when steel sheds are not allowed (owned by HOA). People fly down our road as if it were a highway. There are supposed to be 5 board members but Mr. Casselman does not state who they are, and the HOA doesn't provide budget information, when voting on rules occur, and in fact created documentation with the county about road maintenance. Our HOA fees are to cover road maintenance fees. With the county documentation, it states that the residents are taxed with their agreement and I bet none of the residents here know about it. This is one of the worst HOA's I have ever known. I have a right to share this with the public, my voice. With a background in subdivision development and living in subdivisions with CCRs, this is the worst I have ever seen.

Hi Kacie:

Here is some information for you.

Montana State Statutes:
http://data.opi.mt.gov/bills/mca_toc/index.htm

TITLE 70. PROPERTY
http://data.opi.mt.gov/bills/mca_toc/70.htm

Montana has certain fencing statutes:

Part 2. Adjoining Landowners and Boundaries – Fences
http://data.opi.mt.gov/bills/mca_toc/70_16_2.htm

You may want to definitely view the fencing statutes to see if there is anything here that may be of assistance.

Hi Kacie:

Don’t stress over it … not worth the stress. The attorney you spoke with even stated not to worry and call if something comes up, so he probably also feels they will not file anything or they would lose if they were to file because of extenuating circumstances regarding weather. You are in Montana where there is lots of snow and frozen ground so you cannot put up a fence in those weather conditions.

Be sure to check out the fencing statutes … depending on your property and boundaries if on property lines the neighbors may have to share the expense.

Good luck and keep us informed.

They would need to do as they should with you ... plant shrubs or put fence around propane tank as soon as weather allows in the spring.