Pre-existing Fence (California)

Started by ChristinaT • 11 replies • 1648 views

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ChristinaT (California)
Posts: 2

Posted:

When I purchased my condo it had a fence on the patio outside the bedroom. A a single woman I hesitated to buy something on the bottom but the fence made me feel more confident and protected. I have been in my condo for 7 years and the fence was apparently up for at least 13 years. I was told the fence was grandfathered in. A new Board member has taken a particular disliking to the fact that I have a fence and is insisting that I either produce documents showing it was grandfathered in or have the fence removed. I don't even know where to begin to search for such documents. Several neighbors said they were in meetings where this was discussed and confirm that it was considered grandfathered in. Any advice would be greatly appreciated.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Christina,

Since CA law, Code of Civil Procedure §336, has a 5 year statute of limitations, all you need to do is prove that the Board was aware of the issue at least 5 years ago.

I'd suggest getting copies of Association meeting minutes and start looking for references to this issue being discussed. You can request to review the meeting minutes from your Board or management company.

You should also get statements from those individuals you've spoken to who said they remember it being discussed. Additionally, if you have something from the Association identifying the fence as being there (perhaps architectural inspections) this would be helpful to.

Once you have a document, or two, that shows the board was aware of the fence prior to 5 years ago, calmly write a letter to the Board citing the law and that the fence is indeed grandfathered.

Hope this helps,

Tim

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I would also say this is a 50/50 case on burden of proof. The HOA should also prove their side. They are the ones who should have records on approval for this fence. Plus the decision to grandfather such items should be with them as well. I would suggest they produce records not opinions as well.

Is the fence in a state of disrepair or anything like that? Could that be an issue? A fence is a fence until it starts falling apart or showing it's age in a HOA. That's what usually catches these fussy belly's eyes. I would make sure it's in good shape and try to repair it if it isn't. Probably easier to request to take action on the repairs if needed for yourself. That's if there are certain standards for fences such as paint color, material, or other approval required standards.

This is one of those things that only 1 board member has an issue with doesn't mean ALL members have it. Just have to bring a few witnesses and request they provide information as well.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Chris

I say until the BOD officially raises the issue, ignore the one member.

BrianB (California)
Posts: 2,820

Posted:

i advise following Tim and John... ignore the single member, but prepare your defense while people remember, before they get caught between sides, etc.. Get all your statements, data, info now, and have it handy for later, in case this other owner gets some traction.

Then ignore the guy.

CarolR11 (Colorado)
Posts: 2,563

Posted:

This quote from Tim is crucial: "Since CA law, Code of Civil Procedure §336, has a 5 year statute of limitations, all you need to do is prove that the Board was aware of the issue at least 5 years ago. "

For more about the grandfathering topic, go to davis-stirling.com, Main Index, Violation or similar heading.

He, John & Brian offer good advice.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By ChristinaT on 09/12/2012 12:41 AM
When I purchased my condo it had a fence on the patio outside the bedroom. A a single woman I hesitated to buy something on the bottom but the fence made me feel more confident and protected. I have been in my condo for 7 years and the fence was apparently up for at least 13 years. I was told the fence was grandfathered in. A new Board member has taken a particular disliking to the fact that I have a fence and is insisting that I either produce documents showing it was grandfathered in or have the fence removed. I don't even know where to begin to search for such documents. Several neighbors said they were in meetings where this was discussed and confirm that it was considered grandfathered in. Any advice would be greatly appreciated.

How were you contacted by this new board member?

Was your fence on an agenda and was it properly noticed? The board cannot act on anything unless it is on the agenda. An agenda must be posted in a public area a certain number of days before the meeting and according to your CC&R the board may be required to send you notification of a meeting and an agenda. The board cannot act on anything without a meeting unless it is an emergency. Obviously a 13-year-old fence is not an emergency.

If the topic of your fence was not on the agenda, then the director is acting on his/her own. This is a no-no. You can complain against this director. Put the complaint in writing. You want to have a record that this director is acting in this manner because more may happen in the future either to you or others.

How did the director notify you of this? Was this in writing? Was this verbal? If it was verbal, record the dates to the best of your memory.

Please get the neighbors to state in writing that the fence was discussed. You can request meeting minutes which the board must then produce. There is a time limit on how many days the board has to produce the records. You'd find the timeline as to when the board made the decision and then go back a few months. For meeting minutes this old,

Look to the documents you already possess such as the description of the property that you bought seven years ago. Also check to see if the fence is on exclusive use common area and who is responsible for the repair or upkeep. It might actually be the board's responsibility.

It sounds as if this person is acting outside of his/her duties and while it is easier to ignore a person like this for now, because you said that this person was INSISTING that you take it down (as opposed to investigating the records) and you do not mention that you were given notice by the board and that this was on the board agenda AND that you were summoned to a hearing, this person seems to be a bully. It might be the case that because you are a single woman, you are being targeted by a bully. I know how that is and have been there. In which case, records will be important for you and others who come to this person's attention.

See below for info on meeting minutes.

(2) Minutes of member and board meetings shall be permanently made available. If a committee has decisionmaking authority, minutes of the meetings of that committee shall be made available commencing January 1, 2007, and shall thereafter be permanently made available.

Read more: Davis-Stirling Act http://www.davis-stirling.com/MainMenu/Statutes/CivilCode13652/tabid/894/Default.aspx#ixzz26GgpWc9j
from Davis-Stirling.com by Adams Kessler PLC. If your association needs legal assistance, boards can reach us at (800) 464-2817 or [email protected].

(5) Minutes of meetings of committees with decisionmaking authority for meetings commencing on or after January 1, 2007, within 15 calendar days following approval.

Read more: Davis-Stirling Act http://www.davis-stirling.com/MainMenu/Statutes/CivilCode13652/tabid/894/Default.aspx#ixzz26GgtTtOz
from Davis-Stirling.com by Adams Kessler PLC. If your association needs legal assistance, boards can reach us at (800) 464-2817 or [email protected].

ChristinaT (California)
Posts: 2

Posted:

Thank you all for your advice. I am absolutely being bullied. I am on the Board but was unable to attend this meeting due to a family emergency. Regardless this was not on the agenda, executive session or otherwise. I was not informed that it was going to be discussed and the only thing reflected in the minutes is an action item stating that I was to be sent an email that my fence would be removed on Septeember 1.

I appealed to the good since of the Board President who is pretty reasonable. Part of the reason why the fence is necessary is because my neighbor has the equivalency of a junk yard on her patio. A rusty file cabient, old boards with nails, a rusty tool chest, decaying exercise equipment and many plants both real and fake. Some of this sstuff is partially hidden by hedges and partially by my fence. People call her patio "the junk yard". For seven years I have ignored this mess because she was caring for her elderly mother and was very stressed. Her mother died six months ago and she has now received two notices from the Board to clean her patio or be called into an executive session regarding a fine. I babysit my 5 year old grandson and he plays on my patio. It would be dangerous to remove the fence which provides a barrier.

The Board President initially ignored my pleas but when I pointed out that the entire discussion was illegal due to Davis Stirling agenda requirements; I heard no more and the fence was not removed. The bully was elected to the Board as a write in candidate with an agenda of changing the CC&Rs to change from allowing one pet to two pets. He wanted to be able to rent his unit to a friend who had two german shepherds. He pushed a vote of homeowners and lost. I was on team one pet and involved in ensuring everyone voted. Many of the residents are afraid of large dogs in such close quarters. Thus fence revenge.

However, I have the original sales brochure showcasing the fence. The Board President 7 years ago was coerced into taking the fence down after I closed escrow; but before I moved in by another homeowner who was mad that she did not have a fence. When REMAX threatened to take the HOA to court, it was reinstalled by the HOA handyman. That President has since moved but I know where he works and plan to see him. The month this happened there was not a meeting and hence no minutes. He stated that he did not want to waste HOA money on something so minor.

The fence is not in disrepair but initially was covered with bushes and was invisible. The bushes became diseased and the Board had them replaced with little tiny bushes. The bushes now cover 3/4 of the fence.

My plan now is to write a very reasonable letter citing the 5 year statue along with citing illegal discussion of non-agenda item. The bully is attempting to get me to file a lawsuit as you cannot be on the Board if you are involved in a lawsuit. I am very involved in trying to get some of the delayed maintenance addressed. I understand why people refer to being on HOA as a thankless job!

I hope I haven't BORED you all to death!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

A sales brochure by a realtor is not proof that the Association knew of the issue (irregardless if they did or not). Even though there was some drama and threats of legal action, if it was all verbal there is no proof. If it wasn't documented in the minutes, there is no proof.

Since you are on the Board, I would recommend that you search the Association files to see if there is a copy of any written communication between your Realtor and the Association President concerning the issue. If there is, make a copy as that would be proof.

If the Association doesn't have a copy, contact your Realtor and see if they have a copy or remembers the incident and is willing to sign an affirmative to what happened, as this can be proof.

Otherwise, the only proof you currently have showing when the Association was aware of it is the letter you just received (and that would be within the 5yr statute of limitations).

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By ChristinaT on 09/13/2012 6:01 AM

However, I have the original sales brochure showcasing the fence. The Board President 7 years ago was coerced into taking the fence down after I closed escrow; but before I moved in by another homeowner who was mad that she did not have a fence. When REMAX threatened to take the HOA to court, it was reinstalled by the HOA handyman. That President has since moved but I know where he works and plan to see him. The month this happened there was not a meeting and hence no minutes. He stated that he did not want to waste HOA money on something so minor.

The fence is not in disrepair but initially was covered with bushes and was invisible. The bushes became diseased and the Board had them replaced with little tiny bushes. The bushes now cover 3/4 of the fence.

My plan now is to write a very reasonable letter citing the 5 year statue along with citing illegal discussion of non-agenda item. The bully is attempting to get me to file a lawsuit as you cannot be on the Board if you are involved in a lawsuit. I am very involved in trying to get some of the delayed maintenance addressed. I understand why people refer to being on HOA as a thankless job!

I hope I haven't BORED you all to death!

There is no lawsuit. The board had an illegal discussion. A lawsuit would only be filed after a lot of other things took place such as 1. a hearing 2. mediation/arbitration 3. legal action on the board's part. You might also check your CC&R on notification. In some cases, particularly in the case of a hearing, an email is not considered a proper means of notification. See what the proper form for notification of violations is in your CC&R and bylaws.

My husband and I have left our condo community. The board held several illegal meetings and neglected to send agendas. You can assure your board that the courts do take this very seriously. Our HOA was required to pay out a few hundred as a fine for non-production of documents and the insurance paid a large ($$$$$) settlement for their secret meetings and various violations of the Davis-Stirling Common Interest Development Open Meeting Act.

The main antagonist is an active member on the board and was and probably still is the Torrance branch of a rabbit rescue. Our CC&R only allowed two pets and rabbits weren't allowed at all. This board member had eight rabbits and two cats in a three bedroom townhouse.

I am sure that the people who want to keep the number of pets down truly appreciate your efforts. I would have. But we were alone in this fight which is why we left. The rabbit owners were our neighbors and we shared a wall. I could hear the rabbits chewing on the walls and see the damage. The board refused to have termite inspections which I asked for over a year ago. And there are termites.

I am also sure that the people who want repairs done appreciate what you are doing. The problem is with the wrong group you can have too many people afraid to do anything and willing to believe anything.

So I'm writing this as an encouragement. I know I would have appreciated you on my board (even though I had two larger dogs). Down the line, I know I would have appreciated preventing illegal discussions because the potential for ugliness like a bully intimidating people becomes so much easier from the manner you described where no one knows that the discussion will take place and then someone gets an email.

Be sure that the whole board understands the procedure of no meeting, no action and no discussion of non-agenda items going forward.

CarolR11 (Colorado)
Posts: 2,563

Posted:

No, at least speaking for myself, I'm not bored!

Do your bylaws or CC&Rs state that one must resign from the Board if suing the HOA? Or that director can be removed?

It does sound like you'll be OK. If other owners remember the fence being there more than five years ago, then reason would suggest that one or more directors also were aware of the fence--or should have been. Or is it that it cannot be seen from in front of your unit and only from the private yards of others?

KevinK7 (Florida)
Posts: 1,343

Posted:

Since the HOA had their handyman re-install it I think it is safe to assume the BoD was aware of the fence and have lost their right to do anything.

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