HOA Responsibility

Hey Guys,

I live in a condo complex in which all fencing is owned by the complex/HOA. The fencing was put in a few years ago by a developer hired by the HOA. When I purchase my condo and moved in last year, I noticed that the fencing seems to be incorrect and I am losing a section of my backyard, about 6 x 10 feet, to my neighbor. Every other location in which a similar situation of units exists, the fence is in the proper place, where I believe mine should also be.

I also spoke with the neighbor and he confirmed that he had to dig out the 6 x 10 area to remove all the excess dirt as my unit is about 3 to 4 four higher then the neighbors and the dirt used to be level with my unit as I believe it was my land. You can now see the unpainted section of the building where the dirt used to be. The fencing placement also makes it so that half of my bedroom wall exists within the confines of the neighbors backyard, meaning I get all the noise, dog barking, scratching, banging on the outside wall, loud talking at night etc. directly through contact with my bedroom wall.

I asked that the HOA move the fence or hire a surveyor to review the fencing for appropriate placement after showing them the hand-drawn fence layout that came with my deed, although I cannot tell where the hand-drawn document originall came from, it came stapled to the deed and Deed insurance papers to illustrate my unit and parking location (which is also indicated on the deed), but it does show that the fence should be moved to the place I am requesting. They have determined that since the developer put the fence in the wrong location and it was done under the leadership of the previous HOA that they, the current HOA, isn't responsible, even though the CC&Rs state that the HOA owns the fence. They also feel that even though the document came with my deed that they won't rely on it since I cannot tell them exactly where it came from and obtain another copy. They further determine that I would have to pay the surveyor myself (1,500) and any legal fees to obtain approval from the other owner before they would consider the situation further. Meaning that even with a surveyors report and approval from the neighbor they might still reject the moving of the fence since the HOA owns it.

Please help....

1) As the CC&Rs state that the HOA owns the fence and they refuse to act on this issue what can I do?
2) Are they, the HOA, required to move the fence or at least research the issue now that I've brought up the issue and formally submitted it to dicuss in the meetings?
3) Who's responsibiity in California is it to review the fence placement and associated fees (nothing to this effect listed in the CC&Rs)?
4) Once the issue has been brought to the HOA and PM's attention, who is responsible for performing the work and research which determines the fencing's correct placement, (ie hire surveyor, lawyer, online research, etc.) me, the property owner, or the HOA and PM?
5) Do they have to reimburse me if I pay the 1,500 for a surveyor and it shows the fencing is incorrect, they have already 'determined' that they will not willingly reimburse me or pay for the fencing to be moved?
6) If I pay for a surveyors report and it shows that the fence should be moved and they refuse, can they stop me from moving the fence myself with my own funds, as the CC&Rs state the HOA owns the fence and they feel that gives them the power to stop me from moving it?

Any and all help is appreciate, I have looked exhaustively and can't find any California links to laws or HOA rules that require them to fix the fence or research my continuos complaint. This is my last resort!!

Kindest Regards To All Who Reply,
Mark

Thanks Tim, but that costs money that I don't really have to throw around. I'm pretty young and this is my first property. I guess the biggest question I have need of an answer for is once an owner raises an issue like this, does the HOA have to take any action and do any research, or can they do as they are currently doing, and just say its all on me to do everything to prove my own case to them,? I thought the HOA would have to take up the matter and resolve it somehow and not just keep putting it on me.

Kindest Regards...

Mark

if the HOA owns the fence and the fence was put in by the developer/HOA and was installed incorrectly then it is the responsibility of the HOA (or developer if they can get him) to fix it. Same thing as if I installed my fence on my neighbors property, I would be responsible for moving unless I can prove the surveying company made a mistake

"They also feel that even though the document came with my deed that they won't rely on it since I cannot tell them exactly where it came from and obtain another copy."

Mark,

If the document came with your Deed, it was furnished to you by the Seller and/or the title company. Find your title insurance policy and contact the title company. Insist that they help you resolve this issue with your HOA.

I would ask the HOA for the contact informtion for their attorney and then consult an attorney on your own to represent you (most consultations are free).

If the fence is owned by the HOA, it does not matter who installed it, if it is wrong the HOA is responsible to fix the problem.

Mark,

I believe you need to establish the boundaries of your lot first. The fence issue can be solved, later. I was hoping your lot size would be on the plat. Perhaps you should ask the Title insurance company about your property boundaries or ask your settlement attorney. Did you buy that unit from the person who did the conversion? Does your deed actually state you own a lot or just a unit?

Rule: IF the Association owns the fences than they can NOT run them thru your property. This is why it is so important to establish the property boundaries first.

Ellen,

I agree with everything you said and this was also my first thought. But again, it is possible the lot was sold separately as it can be the case with a parking space. This is not uncommon during conversions from garden apartments to condominiums.

The problem seems to be that whoever did the conversion did not do a property survey of the individual lots. And, I do not see how a surveyor can do anything unless there is something in the deed or the tax records to describe the lot size of the ground units. Exhinits are fine but unless they are certified they can just be consired 'site plans' and not a legal description of the property. But who knows at this point.

Mark, please read the covenants very carefully to see if there is any language describing the ‘property use'. But I have already said that.