FlM (Florida)
Posts: 8
Posts: 8
Posted:
This issue has become so screwed up (pardon my language) that to start writing everything out would take a very long time, and would be so long most of you probably wouldn't read it. But for what I have written, I am begging that you read it and read it carefully... pretty please!
If you don't want to read the cliffs-notes version of the drama ensuing, then please answer these questions for me. What do you understand about easements?? What are your neighborhood's rules for easements? Are residents allowed to build fences or have any landscaping in easements, or does it depend on the easement?? What does your county or state say? Please provide me any information you have or know about easements. Ok, now the long part:
When I joined the board, I noticed the HOA President was very focused on ponds, pond maintenance. And I understand that this is important and one of the HOA responsibilities. But I was surprised that this was his focus to a point that it bordered obsession. But I figured OK, while he worries about that, I'll try and pick up other pressing issues, like the recreation center becoming dilapidated to the point residents don't use it (and it's only tennis and basketball courts), and vandalism keeps occurring. To me, this would be just as important, but different strokes for different folks I guess.
The current president has been in that position since 2011 after the long-standing president (served since the neighborhood was built) became ill (and has since passed on). The HOA voting system seems flawed. Since no one else ran against him, and hardly anyone came to the meeting, and only a few handed back their proxy form, he was automatically president again and will be for 2 more years.
Anyway, in the 21 years this neighborhood has been in existence, neighbors have built fences along these easements. Shrubbery and landscaping are along these easements. Heck, the developer himself had some trees planted in some easements which are now beautiful, mature (maple) trees!
My understanding of an easement is that it is still the property owners' land. They are required to maintain it (ie: make sure the grass is still mowed, or the sidewalk is kept clean, etc). My understanding of an easement is also that IF there is a necessity by the county, HOA, whoever is authorized - to access the easement, that they may do so - IF THE NECESSITY EXISTS. And that they may access by any means necessary (meaning that if there are obstructions such as fences or shrubs, that these may be removed and the cost is on the homeowner, NOT the entity entitled to the easement.)
So for example, if Joe Smith has a fence in an easement, and there is a pipe under that easement, and the pipe collapses, whoever oversees that pipe (lets say swfwmd, as an example) has the right to remove Joe Smith's fence at HIS expense in order to fix that pipe. Joe Smith should already be aware of this and accept that a necessity *may* someday present itself in which his fence, or shrubs, etc may need to be removed for easement access. Most homeowners are willing to accept that risk in order to enjoy full use of their land.
Some easements are needed for access points on a more regular basis. And those access points do need to remain accessible so that the "pond guys" and "landscape" guys can get in and mow around/maintain the ponds. Those easement access points have been identified and have been in a document (I suppose unofficial? But it's like 20 years old. It MAY be official, but I don't know) and those easements have remained clear (the homeowners are aware and due to the ongoing necessity of maintenance, keep those easements clear at all times).
So, follow me? We have easements that are used as access points to certain ponds between certain houses, that have been designated as such for many years and have always remained clear.
There are other easements in our neighborhood as well. One of those easements is behind my house. My house backs up to another house that is in a cul-de-sac. Well, this easement is a drainage easement. Although my lot is NOT 'on' a pond (but I can see it from my house), it is clear to me that the easement behind my house (which dips) is meant for overflow/drainage after heavy rains. It runs along many properties, actually. It is also where one of the pond pipes is underground (this is not a pressurized pipe like a water line... it is a passive-flow pipe, if that makes sense. The best way I can describe it is its the underground pathway gators can take to navigate from one pond to another.
So ANYWAY. My property and the property next to me has had wooden fences in place since at LEAST 1996. Obviously old, but in better shape than you'd think after all this time. In 1997, a resolution was passed disallowing any NEW fences to be wood, which is how I know these fences are very old and longstanding. My next door neighbor has lived here since 1999 and said the fence has been up since he moved in. Follow me here: My next door neighbor also has mature landscaping and a maple tree (easily over 20 years old, may even have been there PRIOR to the neighborhood development) that is technically IN this drainage easement.
We had a very heavy tropical storm a few years ago named Debby. Some of you may remember if you are in FL. The drainage easement looked like a little river. It certainly did its job. And it did it just fine with fences and that maple tree in place. This particular easement has NEVER had problems, and along the way almost every neighbor has a fence. Many have the fence right on the property line so neighbors back-to-back meet up at the property line (follow me still I hope?) Although my neighbor's and my fence is wood, most of the others that follow along this easement are newer and vinyl.
In that document I mentioned (pointing out easement access points) - there were two easement access points that I REMEMBER board members being puzzled about, INCLUDING the HOA president, because they did not KNOW there was an easement along these properties. Those easemement access points were/are for MANHOLE covers, so that routine maintenance can be done on the underground pipe. Or if there is an obstruction, there is access to the manhole cover so they can snake something in there to see what the obstruction may be (this has never happened).
So for this whole time, this easement has been doing its job, but has remained off the radar of the HOA. There has been no need to access it (beyond regular maintenance through the manhole cover by the pond maintenance guys, and honestly I'm not sure they've even done that?) and the easement has done its job.
So now comes a new neighbor. The house he bought had very mature, thick hedges along the back of the property ("in" the easement for over 20 years). This guy is apparently a peach... so nice (note sarcasm) and went to the neighbors behind his house (which are my next-door neighbors - neighbors next door... and said "Hey look, I want to put up a fence. And it might be on your property, but maybe only by a few inches or so... do you mind?" Those neighbors, of course, minded, and the guy was very crotchety (the attitude he had left a big impression) so they ran to the HOA president with that concern (and also this guy said he planned to have a wood fence, which is NOT allowed). So, the HOA president contacts this guy and says "We have rules, and one of them is that you must fill out the ARC form before doing any of that sort of work."
So we come back and reject his request for the wooden fence and tell him it must be vinyl. At this point, I'm still in agreement with our actions. The President doesn't like this guy because of the way his demeanor is. So he decided he's going to scrutinize this guy's request. Requires the guy to do a survey and not use the survey that the original homeowners (from 1993) had given to him. The guy does the survey. The guy comes back and says "Ok, now that I know where my property line is, I'll use the vinyl material you want, which is over 1k additional cost but fine, but I want to build up to my property line."
It is ONLY AT THAT POINT that the freaking HOA president even REALIZED that there is an easement back there!!!!! Suddenly that easement (which my house also backs up to) becomes the FOCUS of the president. He decides to come back and tell the guy NO, you need to build OUTSIDE of the easement. NO fences in the easement.
(Also worth noting, shortly before that, the HOA President decided that EVERY EASEMENT in the neighborhood needed to be cleared, regardless of any necessity. He wanted to be "fair" and apply "across the board" so instead of only having the easements cleared where there was necessity to have them clear, he decided EVERYONE on an easement needed to be clear out of the easement). Some homeowners complied, mostly because they don't care to put up a fight. And some have not (which he is calling "problem children.")
The HOA consulted with the attorney who said this 'requirement' WILL NOT STAND UP IN COURT. The HOA DOES NOT HAVE A LEG TO STAND ON WITH THIS and advised to let the guy build his fence in the easement, as it is clear there has been no enforcement of this prior (evidenced by all the other fences in the easement) and that no problems have occurred with fences in the easement.
The HOA president takes things personally. So since he decided this guy is an a$$hole (and jerk-neighbor even had his own attorney sending letters that this is NOT right, the president is misunderstanding what a drainage easement is, etc etc) - the president decided that our HOA attorney's aren't giving him the answer he wants to hear so he's just going to keep pressing forward with pushing that EVERYONE clear out of EVERY easement, and now this one too that he didn't even know about prior to the incident.
The rest of the board is OK with this. I am ABSOLUTELY FLOORED by what I perceive as pure stupidity with this easement issue. My husband has researched thoroughly, has several case-law studies backing up that what the HOA is doing is WRONG, and that the President (and the lemmings on the board) are setting the HOA up for a huge lawsuit.
So anyway, this guy goes back and forth with the HOA. Finally after MONTHS of this crap, he decides to concede and have his fence OUTSIDE of the easement just because he is sick of waiting (as the HOA purposely dragged their feet with this whole issue). His lawyer had pointed out several things, such as the fact that the hedges have been in place since the neighborhood began, and by placing his fence outside of the easement, how would he be able to maintain those hedges? Also, by having his fence outside the easement (losing 5 feet of his land) - it brings his fence right up against his pool cage (so much so that a person cannot fit in between the two). But none of this mattered to the board. And this guy conceded. And honestly I'm disappointed he did but I can't blame him. He might not be a nice guy but I think the way he was treated was ridiculous.
Up to that point (the guy moving in and making the stink) the HOA pres didn't even realize an easement was back there. The Pres. decided to call in SWFWMD on the "problem children" in the neighborhood, which included the fence guy. Swfwmd decided to threaten fines with the 'problem children' (and ONLY the problem children!!!) because supposedly they are in violation of swfwmd's original permitting condition with the neighborhood. I am SO CONFUSED. How can the county give approval, even having in their fence brochure that fences ARE ALLOWED in easements, and then this happen?
Mind you, swfwmd has been in this neighborhood before. EVERYTHING HAS BEEN THE WAY IT STILL IS for decades. How is this suddenly such a big issue!? Because the pres. is making it a big issue. And swfwmd didn't cite everyone with fences in easements. ONLY the ones the president pointed out.
So now at the recent mtg, the pres and lemmings told me that I am going to have to remove my fence. That my neighbor, whose fence has been there forever, is going to have to move his fence. That the pres. is going to enforce that over 10 houses need to remove their fences, or rather, move them 5 feet back from their property line. This will, in effect, create an ALLEY behind these houses. I'm sorry, but I left a city to escape alleys. And now this jerk wants to create an alley behind our houses "just in case" the pipe may "someday" collapse.
I tried to discuss with the board but I feel like what I am saying is falling on deaf ears. I would really appreciate any advice or thoughts about this situation, and in particular, about easements and your understanding of them (or facts about them).
Thank you.
If you don't want to read the cliffs-notes version of the drama ensuing, then please answer these questions for me. What do you understand about easements?? What are your neighborhood's rules for easements? Are residents allowed to build fences or have any landscaping in easements, or does it depend on the easement?? What does your county or state say? Please provide me any information you have or know about easements. Ok, now the long part:
When I joined the board, I noticed the HOA President was very focused on ponds, pond maintenance. And I understand that this is important and one of the HOA responsibilities. But I was surprised that this was his focus to a point that it bordered obsession. But I figured OK, while he worries about that, I'll try and pick up other pressing issues, like the recreation center becoming dilapidated to the point residents don't use it (and it's only tennis and basketball courts), and vandalism keeps occurring. To me, this would be just as important, but different strokes for different folks I guess.
The current president has been in that position since 2011 after the long-standing president (served since the neighborhood was built) became ill (and has since passed on). The HOA voting system seems flawed. Since no one else ran against him, and hardly anyone came to the meeting, and only a few handed back their proxy form, he was automatically president again and will be for 2 more years.
Anyway, in the 21 years this neighborhood has been in existence, neighbors have built fences along these easements. Shrubbery and landscaping are along these easements. Heck, the developer himself had some trees planted in some easements which are now beautiful, mature (maple) trees!
My understanding of an easement is that it is still the property owners' land. They are required to maintain it (ie: make sure the grass is still mowed, or the sidewalk is kept clean, etc). My understanding of an easement is also that IF there is a necessity by the county, HOA, whoever is authorized - to access the easement, that they may do so - IF THE NECESSITY EXISTS. And that they may access by any means necessary (meaning that if there are obstructions such as fences or shrubs, that these may be removed and the cost is on the homeowner, NOT the entity entitled to the easement.)
So for example, if Joe Smith has a fence in an easement, and there is a pipe under that easement, and the pipe collapses, whoever oversees that pipe (lets say swfwmd, as an example) has the right to remove Joe Smith's fence at HIS expense in order to fix that pipe. Joe Smith should already be aware of this and accept that a necessity *may* someday present itself in which his fence, or shrubs, etc may need to be removed for easement access. Most homeowners are willing to accept that risk in order to enjoy full use of their land.
Some easements are needed for access points on a more regular basis. And those access points do need to remain accessible so that the "pond guys" and "landscape" guys can get in and mow around/maintain the ponds. Those easement access points have been identified and have been in a document (I suppose unofficial? But it's like 20 years old. It MAY be official, but I don't know) and those easements have remained clear (the homeowners are aware and due to the ongoing necessity of maintenance, keep those easements clear at all times).
So, follow me? We have easements that are used as access points to certain ponds between certain houses, that have been designated as such for many years and have always remained clear.
There are other easements in our neighborhood as well. One of those easements is behind my house. My house backs up to another house that is in a cul-de-sac. Well, this easement is a drainage easement. Although my lot is NOT 'on' a pond (but I can see it from my house), it is clear to me that the easement behind my house (which dips) is meant for overflow/drainage after heavy rains. It runs along many properties, actually. It is also where one of the pond pipes is underground (this is not a pressurized pipe like a water line... it is a passive-flow pipe, if that makes sense. The best way I can describe it is its the underground pathway gators can take to navigate from one pond to another.
So ANYWAY. My property and the property next to me has had wooden fences in place since at LEAST 1996. Obviously old, but in better shape than you'd think after all this time. In 1997, a resolution was passed disallowing any NEW fences to be wood, which is how I know these fences are very old and longstanding. My next door neighbor has lived here since 1999 and said the fence has been up since he moved in. Follow me here: My next door neighbor also has mature landscaping and a maple tree (easily over 20 years old, may even have been there PRIOR to the neighborhood development) that is technically IN this drainage easement.
We had a very heavy tropical storm a few years ago named Debby. Some of you may remember if you are in FL. The drainage easement looked like a little river. It certainly did its job. And it did it just fine with fences and that maple tree in place. This particular easement has NEVER had problems, and along the way almost every neighbor has a fence. Many have the fence right on the property line so neighbors back-to-back meet up at the property line (follow me still I hope?) Although my neighbor's and my fence is wood, most of the others that follow along this easement are newer and vinyl.
In that document I mentioned (pointing out easement access points) - there were two easement access points that I REMEMBER board members being puzzled about, INCLUDING the HOA president, because they did not KNOW there was an easement along these properties. Those easemement access points were/are for MANHOLE covers, so that routine maintenance can be done on the underground pipe. Or if there is an obstruction, there is access to the manhole cover so they can snake something in there to see what the obstruction may be (this has never happened).
So for this whole time, this easement has been doing its job, but has remained off the radar of the HOA. There has been no need to access it (beyond regular maintenance through the manhole cover by the pond maintenance guys, and honestly I'm not sure they've even done that?) and the easement has done its job.
So now comes a new neighbor. The house he bought had very mature, thick hedges along the back of the property ("in" the easement for over 20 years). This guy is apparently a peach... so nice (note sarcasm) and went to the neighbors behind his house (which are my next-door neighbors - neighbors next door... and said "Hey look, I want to put up a fence. And it might be on your property, but maybe only by a few inches or so... do you mind?" Those neighbors, of course, minded, and the guy was very crotchety (the attitude he had left a big impression) so they ran to the HOA president with that concern (and also this guy said he planned to have a wood fence, which is NOT allowed). So, the HOA president contacts this guy and says "We have rules, and one of them is that you must fill out the ARC form before doing any of that sort of work."
So we come back and reject his request for the wooden fence and tell him it must be vinyl. At this point, I'm still in agreement with our actions. The President doesn't like this guy because of the way his demeanor is. So he decided he's going to scrutinize this guy's request. Requires the guy to do a survey and not use the survey that the original homeowners (from 1993) had given to him. The guy does the survey. The guy comes back and says "Ok, now that I know where my property line is, I'll use the vinyl material you want, which is over 1k additional cost but fine, but I want to build up to my property line."
It is ONLY AT THAT POINT that the freaking HOA president even REALIZED that there is an easement back there!!!!! Suddenly that easement (which my house also backs up to) becomes the FOCUS of the president. He decides to come back and tell the guy NO, you need to build OUTSIDE of the easement. NO fences in the easement.
(Also worth noting, shortly before that, the HOA President decided that EVERY EASEMENT in the neighborhood needed to be cleared, regardless of any necessity. He wanted to be "fair" and apply "across the board" so instead of only having the easements cleared where there was necessity to have them clear, he decided EVERYONE on an easement needed to be clear out of the easement). Some homeowners complied, mostly because they don't care to put up a fight. And some have not (which he is calling "problem children.")
The HOA consulted with the attorney who said this 'requirement' WILL NOT STAND UP IN COURT. The HOA DOES NOT HAVE A LEG TO STAND ON WITH THIS and advised to let the guy build his fence in the easement, as it is clear there has been no enforcement of this prior (evidenced by all the other fences in the easement) and that no problems have occurred with fences in the easement.
The HOA president takes things personally. So since he decided this guy is an a$$hole (and jerk-neighbor even had his own attorney sending letters that this is NOT right, the president is misunderstanding what a drainage easement is, etc etc) - the president decided that our HOA attorney's aren't giving him the answer he wants to hear so he's just going to keep pressing forward with pushing that EVERYONE clear out of EVERY easement, and now this one too that he didn't even know about prior to the incident.
The rest of the board is OK with this. I am ABSOLUTELY FLOORED by what I perceive as pure stupidity with this easement issue. My husband has researched thoroughly, has several case-law studies backing up that what the HOA is doing is WRONG, and that the President (and the lemmings on the board) are setting the HOA up for a huge lawsuit.
So anyway, this guy goes back and forth with the HOA. Finally after MONTHS of this crap, he decides to concede and have his fence OUTSIDE of the easement just because he is sick of waiting (as the HOA purposely dragged their feet with this whole issue). His lawyer had pointed out several things, such as the fact that the hedges have been in place since the neighborhood began, and by placing his fence outside of the easement, how would he be able to maintain those hedges? Also, by having his fence outside the easement (losing 5 feet of his land) - it brings his fence right up against his pool cage (so much so that a person cannot fit in between the two). But none of this mattered to the board. And this guy conceded. And honestly I'm disappointed he did but I can't blame him. He might not be a nice guy but I think the way he was treated was ridiculous.
Up to that point (the guy moving in and making the stink) the HOA pres didn't even realize an easement was back there. The Pres. decided to call in SWFWMD on the "problem children" in the neighborhood, which included the fence guy. Swfwmd decided to threaten fines with the 'problem children' (and ONLY the problem children!!!) because supposedly they are in violation of swfwmd's original permitting condition with the neighborhood. I am SO CONFUSED. How can the county give approval, even having in their fence brochure that fences ARE ALLOWED in easements, and then this happen?
Mind you, swfwmd has been in this neighborhood before. EVERYTHING HAS BEEN THE WAY IT STILL IS for decades. How is this suddenly such a big issue!? Because the pres. is making it a big issue. And swfwmd didn't cite everyone with fences in easements. ONLY the ones the president pointed out.
So now at the recent mtg, the pres and lemmings told me that I am going to have to remove my fence. That my neighbor, whose fence has been there forever, is going to have to move his fence. That the pres. is going to enforce that over 10 houses need to remove their fences, or rather, move them 5 feet back from their property line. This will, in effect, create an ALLEY behind these houses. I'm sorry, but I left a city to escape alleys. And now this jerk wants to create an alley behind our houses "just in case" the pipe may "someday" collapse.
I tried to discuss with the board but I feel like what I am saying is falling on deaf ears. I would really appreciate any advice or thoughts about this situation, and in particular, about easements and your understanding of them (or facts about them).
Thank you.
