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HOA removed a fence I installed a year ago

Started by AliT • 19 replies • 2773 views

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AliT (Oregon)
Posts: 7
Posted:
Hello,

I'm a tenant in a 9 unit Condo that is an end unit with a side yard and a fenced in back yard that's falling apart. About a year ago there was an incident with some neighbors and their dogs where one of their dogs attacked another dog. We also have a small 15lb dog and sometimes let her out on the unfenced side area. I installed a small metal decorative fence that ran the length of the side yard that was about 1.5' tall with a swinging gate so that it's easily accessable to anyone that needs to go there.

I should have checked with the HOA before I installed the fence and submitted a written request and I did not. I never got a verbal or written warning about the fence so I thought nothing of it. On August 30th of this year, I came home and found that the fence had been removed completely and when I talked to my neighbor, he mentioned he saw a fencing company come and repair a different fence on the property and saw that they were hauling away some metal fencing. I've filed a Police report and have not had a response from the President of the HOA and can't seem to get a call back about what has happened.

I understand that I might have broken some HOA rule, but does the HOA have the right to remove something that does not belong to them without notifying me first? I've looked at the Bylaws and they're from 1975. Requests for an updated Bylaw both verbally to the receptionist of the HOA and via email have come up with no response.
PaulT6 (California)
Posts: 409
Posted:
I would think the HOA should have notified the property owner before taking any physical action. Perhaps they did and your landlord didn't notify you? In any event, you were in non-compliance and as it is all on private property so it may not be very high on the Police Dept food chain. The only recourse is that you may be able to get the fencing material back and ask the HOA, through your landlord, for a variance.

Paul T
JeanneK3 (Maryland)
Posts: 562
Posted:
AliT:
Good that you filed a police report. I assumed you accused them of theft. Now bring trespassing charges against them as well. Although many governing documents state the association can come on your property to correct something, many small associations don't know they need a court order to do so as well as give you letters of warning. You should file changes against your association and maybe the President as well.
Jeanne
GlenL (Ohio)
Posts: 5,491
Posted:
Jeanne, with all respect, theft and trespassing charges - BALONEY. The poster installed a fence on what is undoubtedly a common area, something she had absolutely no right to do. Just because the area is adjacent to her unit doesn't mean it is for her exclusive use even if she owned the unit, as a tenant she has zero right to do such a thing.
Studies show that 5 out of 4 people have problems with fractions
PaulT6 (California)
Posts: 409
Posted:
Quote:
Posted By JeanneK3 on 09/05/2012 1:00 PM
AliT:
Good that you filed a police report. I assumed you accused them of theft. Now bring trespassing charges against them as well. Although many governing documents state the association can come on your property to correct something, many small associations don't know they need a court order to do so as well as give you letters of warning. You should file changes against your association and maybe the President as well.
Jeanne

I think Ali said she is a tennant? That may somewhat limit what she can do? Ali, it would be interesting to know what input, if any, you received from your landlord.

Paul T
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Jean

Do not be so sure the association trespassed.

It might well be that the fence was on common property, thus the HOA was not trespassing.

It might also be that the docs do allow for the HOA to enter ones property to remove a violation.

Many docs also allow the association to enter ones unit if the unit is presenting a danger to others.

Also, the OP is tenant (renter) thus may have no idea what communication exists between the owner and the association on the issue.

JonD1
Posts: 2,350
Posted:
Ali:

Lets get to where the rubber meets the road.

You rent and you decided to put up a fence for which you recieved no permission from the unit owner in which you reside or from the Board that manages the affairs of the property. Now lets be real you knew you were pushing the envelope. You knew you were on thin ice for what you had done.

So now the fencing is removed from what I would guess is common property or perhaps limited common property. In either case IMO you had no right legal or oherwise to install the fence.

Now as a tenant you have no legal standing with the association. The OWNER of the property and the HOA would be involved not YOU. So to ask if the HOA was required to inform you IMO the answer would be NO.

Now did they have the right to remove the fence under many documents the answer is YES. To be sure one would need to read and understand the property's documents to determine for sure.

The police IMO have no valid charge. There was no violation of the law.
You erected a fence on property you do not own nor do your have legal control of this property. Don't exect much to come from this.

Have you spoken to the OWNER of the property in which you live? And what if anything did they tell you?

And finally filing charges against the property or the Board or the President would be a waste of time and money on your part.

You put up the fence when you had no right to do so. The property took it down done, over and out...............

AliT (Oregon)
Posts: 7
Posted:
Hey guys, thanks for all the feedback. I have been in contact with my landlord and he was not notified in writing about the voilation either.

To clarify the property and the side yard, I'm an end unit, with landscaping that I've been keeping up as there was no upkeep on it before hand, that opens up to my parking spot on the driveway.

I understand that with what I installed, I violated whatever HOA rule (that's not explicity stated in the Bylaws that I have on hand) of putting up a fence. At the same token, numerous attempts to contact the HOA Office by my landlord and myself have not been responded to and one of the Bylaws specifically states that "An owner shall not make structural modifications or alterations in his unit or installations located without previously notifying the Association, through the management Agent, if any, or through the Chairman of the Board of Directors, if no management agent is employed. The Association shall have the obligation to answer within 30 days, and failure to do so within the stipulated time shall mean that there is no objection to the proposed modification or alteration.

If they wanted the fence removed, they didn't do so within the first 30 days of it being installed, it's been a year, and neither one of us was notified of any fines, or violations in writing before the fence being removed completely. I just want it back so I can keep it or sell it.

The bylaws also state the Right of Entry. "In case of an emergency originating in or threatening his unit, an owner shall grant the right of entry to the management agent or to any other person authorized b the board of directors or the association, whether the owner is present at the time or not. An easement is reserved to the Association in and through any unit and the common elements providing access at reasonable times and with reasonable notice for the purposes of maintenance, repair and replacement of the common elements."

I filed the Police report so that if the Association refuses to return my property, I have started the process for small claims court. One could argue that if I parked an RV in my driveway for an extended period of time, and never get notified by the HOA that I was violating a rule of no rv's in the driveway, does that give them the right to forcibly remove it without notification and without returning such property as it falls under the common grounds location?
AliT (Oregon)
Posts: 7
Posted:
Quote:
Posted By JonD1 on 09/05/2012 1:59 PM
Ali:

Lets get to where the rubber meets the road.

You rent and you decided to put up a fence for which you recieved no permission from the unit owner in which you reside or from the Board that manages the affairs of the property. Now lets be real you knew you were pushing the envelope. You knew you were on thin ice for what you had done.

The owner knew of the fence a year ago and actually complimented us in improving the overall look of his unit. A couple of the other owners knew about it and also complimented me on the look of the fence. One of them even tried to help me to recover the removed fence by looking at what maintenance company they used to repair the broken fence to see if I could contact and recover my fence.

Quote:
So now the fencing is removed from what I would guess is common property or perhaps limited common property. In either case IMO you had no right legal or oherwise to install the fence.

Now as a tenant you have no legal standing with the association. The OWNER of the property and the HOA would be involved not YOU. So to ask if the HOA was required to inform you IMO the answer would be NO.

Now did they have the right to remove the fence under many documents the answer is YES. To be sure one would need to read and understand the property's documents to determine for sure.

They didn't notify the owner of the unit, they don't have a specific provision in the Bylaws that states they can remove property IF they don't request in writing that it be removed in the first place. My neighbor puts up a BBQ on their Patio, does that give the HOA the right to come and remove the BBQ because it's rusty makes the place look ghetto without notifying them?

AliT (Oregon)
Posts: 7
Posted:
Quote:
Posted By JohnC46 on 09/05/2012 1:11 PM
Jean

Do not be so sure the association trespassed.

It might well be that the fence was on common property, thus the HOA was not trespassing.

It might also be that the docs do allow for the HOA to enter ones property to remove a violation.

Many docs also allow the association to enter ones unit if the unit is presenting a danger to others.

Also, the OP is tenant (renter) thus may have no idea what communication exists between the owner and the association on the issue.


My Landlord actually told me to file the police report as he wants to take the President of the HOA to court over what he believes was a violation of him being an owner and not being notified to remove the fence. There's other issues that we're dealing with that the president is refusing to budge on such as replacing a heat pump that only my unit has with a newer quieter system that requires an external unit be installed in the back fenced in yard.
AliT (Oregon)
Posts: 7
Posted:
Quote:
Posted By GlenL on 09/05/2012 1:09 PM
Jeanne, with all respect, theft and trespassing charges - BALONEY. The poster installed a fence on what is undoubtedly a common area, something she had absolutely no right to do. Just because the area is adjacent to her unit doesn't mean it is for her exclusive use even if she owned the unit, as a tenant she has zero right to do such a thing.

I'll make it clear that this can not and should not be understood as a common area, maybe a limited common area but not one that is available to other tenants. The other end unit actually has that area completely fenced in. It has access to the side balcony of my unit, that has a patio, sliding glass door and an electrical outlet that hooks into my meter, bay windows, and access to my back yard as well. There are no other units, storage, lands, anything that anyone needs to go to. 20' out from it is a fence that seperates it out from the other condo units that are behind my unit. Even the electric meter is exclusive to my unit. Someone walks on that side, even if they're my neighbors, thats the same as me walking into their back yard without their consent.

At the end of the day, my property was removed. Now I feel like they can walk into my back yard and remove the fountain, BBQ, chairs and table without notifying me if they're allowed to go ahead and do what they did.
GlenL (Ohio)
Posts: 5,491
Posted:
Ali, lets try this again. YOU placed an illegal (HOA illegal - not legal illegal) fence on common property. YOU in effect stole the right of enjoyment of the people who owned the other units. The HOA may not have been aware of it until now but they had the right to remove it and dispose of it. Most HOA's also have rules against having pets in the common areas unless they are on a leash which you also would have been in violation of.
Studies show that 5 out of 4 people have problems with fractions
AliT (Oregon)
Posts: 7
Posted:
Quote:
Posted By GlenL on 09/05/2012 3:16 PM
Ali, lets try this again. YOU placed an illegal (HOA illegal - not legal illegal) fence on common property. YOU in effect stole the right of enjoyment of the people who owned the other units. The HOA may not have been aware of it until now but they had the right to remove it and dispose of it. Most HOA's also have rules against having pets in the common areas unless they are on a leash which you also would have been in violation of.

Fair enough, I finally got a hold of the maintenance company since no one from the HOA is returning my calls or my landlords calls. He's returning my fence tomorrow. That's all I wanted. Thanks for the discussions everyone.
PaulT6 (California)
Posts: 409
Posted:
Interesting discussion, however it is likely that nobody changed their mind about anything anyway. :-) I would hope, however, that HOA would return calls, no matter how busy they may be, just common courtesy in my opinion.

Paul T
GlenL (Ohio)
Posts: 5,491
Posted:
Quote:
Posted By PaulT6 on 09/05/2012 5:51 PM
Interesting discussion, however it is likely that nobody changed their mind about anything anyway. :-) I would hope, however, that HOA would return calls, no matter how busy they may be, just common courtesy in my opinion.

Paul T

Paul, I would agree with you that it is common courtesy however I would point out that the Board and MC had zero responsibility to communicate with a tenant, their obligation lies with the owner. I would further like to point out that in this age of email and cellphones we tend to want instant gratification. But just because we want it does not obligate the person you are trying to contact to dance to your tune. I would further point out that this past weekend was a holiday weekend and the start of school in many places which might also contribute to the "slow response".
Studies show that 5 out of 4 people have problems with fractions
PaulT6 (California)
Posts: 409
Posted:
Quote:
Posted By GlenL on 09/05/2012 7:57 PM
Posted By PaulT6 on 09/05/2012 5:51 PM
Interesting discussion, however it is likely that nobody changed their mind about anything anyway. :-) I would hope, however, that HOA would return calls, no matter how busy they may be, just common courtesy in my opinion.

Paul T


Paul, I would agree with you that it is common courtesy however I would point out that the Board and MC had zero responsibility to communicate with a tenant, their obligation lies with the owner. I would further like to point out that in this age of email and cellphones we tend to want instant gratification. But just because we want it does not obligate the person you are trying to contact to dance to your tune. I would further point out that this past weekend was a holiday weekend and the start of school in many places which might also contribute to the "slow response".

Glen,

Totally agree about dealing with the owner only. I think earlier in the post the OP said the HOA did not return the owner's calls?

"Hey guys, thanks for all the feedback. I have been in contact with my landlord and he was not notified in writing about the voilation either."

" Fair enough, I finally got a hold of the maintenance company since no one from the HOA is returning my calls or my landlords calls."

Hard to say what really happened, however it sounds like the HOA did not contact the owner in writing or answer his calls?

Paul T

AliT (Oregon)
Posts: 7
Posted:
I should have prefaced everything with the first thing I did was contact my Landlord. This was after i found out that it was a maintenance company that removed my fence. He tried getting a hold of the President of the HOA. It's not a well organized HOA as the president is also a property manager for quite a few different rentals in town. As for timeline, they had plenty of time to notify us and never did. The first thing I thought was I got robbed, had I not asked my neighbor, I would have never known it was the HOA, and I would have gone a donkey ride fearing that someone in our neighborhood decided to steal my fence.

Regardless, being an unhappy tenant is going to make it a lot harder for me to do any extra maintenance to the exterior of the property.
BB5 (Missouri)
Posts: 145
Posted:
AliT, Just keep in mind "No good deed goes unpunished" after years of trying to contribute something to this HOA and getting dumped on I will never volunteer again !!!!
JohnC46 (South Carolina)
Posts: 14,265
Posted:
BB5

Nothing personal against Ali, but he/she is a tenant as in a renter nbot an owner. An association's BOD/Officers are elected by and responsible to owners, not the tenants even when they are wrong...they are right...LOL.
JimbB (Hawaii)
Posts: 42
Posted:
I congratulate you, you and the owner deserve the respect of communication, we are suppose to be a civilized society. And wish you luck.

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