Question about covenants

OK I hope I can explain this well enough so people can understand it.

I live in a neighborhood that I only own the property my house sits on. I am however responsible for the repair and upkeep of my patio and porch. The developer put two panels of privacy fence on the side of each home and we have the option to add to that fence if we would like to close in our "easement" area.

Our covenants clearly state any fence the owner erects is the responsibility of the owner. I have residents who have broken privacy fences installed by the developer and they want the HOA to fix them. I see documented no where is the HOA responsible for the repair of said privacy fences.

The patios are not the residents but they are the residents’ responsibility so how can some HOA members declare the privacy fence erected by the builder is our HOA responsibility.

Can any advise?

Hi Carol:

Without seeing the exact verbiage in the governing documents and per your statement, then potentially under the fence section where owners can add it possibly could be determined that this item is the owner responsibility. Therefore, per the fence section can you determine that the overall entire fence (whether initially installed by developer or added to by an owner) would be the owner’s responsibility?

If an owner adds to the fence, would the HOA then be responsible also for maintaining any additions? I would ask the residents that question and ask them to point out in the governing documents where it states the HOA is responsible. When they cannot come back with an answer then the issue might be resolved.

Carol,

I understand what you are saying. However, I believe that the Association is going to be caught up in the language used in your CC&Rs [emphasis added]:


Because of the language used, it appears that the privacy fence installed by the builder would be the responsibility of the Association. A case where the language of the document didn't meet the intent of the passage.

To fix this, I would suggest the following:

1) HOA fixes the fence
2) Amend the document to have privacy fences be the responsibility of the owner and, if the fence is shared between two owners, a shared responsibility.

Until the documents are changed, the language would keep those fences being the responsibility of the Association.

Note: The Association could go through the expense of removing the privacy fences which would also remove their responsibility. Then the HOA could allow the owners to build the fence (but make sure you adopt a guideline on the specific material, style, height, etc.).

Hope this helps,

Tim