Another Fence question

Hello all,

This question relates to a fence that borders the perimeter of a subdivision.

First some data points
- The entire fence is installed within the boundaries of homeowner property on the exterior perimeter of the subdivision.
- The outside of the fence would be county or city road frontage.
- The builder and HOA did not maintain a right of way or any other land ownership around the perimeter so the property lines are always homeowner to county/city (or in 1 small case another homeowner).
- The fence has not been maintained every year but the HOA is currently budgeting for a periodic (first time since install 10 years ago) repair and cleaning.
- The there is no mention of or reference to this fence in the Restrictions
- In the HOA bylaws, there is a single reference in the Duties section and it states "It shall be the duty of the BOD to ... 2. To maintain the subdivision sign, landscaping and fencing"
- The fence is not reflected on the original plat (as it did not exist)
- The fence is not reflected on early surveys.

So here is the question...
- One of the homeowners would like to remove the fence on the side of his property where it abbuts the county road. His intention is to replace the fence with a new fence.
- The fence is 100% within the surveyed boundaries of the homeowners property
- The fence is not connected to any other fence as this property is at the entrance to the subdivision and is the only property on that section

The HOA is claiming that the HO can not remove the fence. Furthermore, they are using the single clause mentioned above as evidence that they HOA owns and is responsible for the fence. The HO is claiming that he can do as he pleases because it is contained within his property boundaries.

Thoughts?

Ed

I'm with Larry; I interpret the bylaw reference to say the HOA maintains the subdivision fencing. But this is not the subdivision/HOA's fence as it's not on common area property. So, yes, the reasonable person approach makes a lot of sense.

I can't imagine the HOA wants to go to the expense of litigating, etc., because the fence has been there so long that the doctrine of laches might apply (no one acted within x # of years to remove the fence, so it's just fine.) Would the rest of you owners want to pay for that litigation?

Np5 - Yes, the fence does have a consistent look around the perimeter of the community. That appears to be the strongest (if not only) argument of the HOA besides the reference to the bylaws comment.

What particular details might be helpful?
- The appearance of the replacement fence is not likely a factor except for the difference from the remainder of the community fencing
- The fence as currently installed is a 3 rail white vinyl fence that is cosmetic but offers no ability to retain children, animals, etc
- Two separate and independent legal opinions (no deep due diligence..only cursory reviews of the documentation) have been requested by the HO and in both cases, they agreed with the HO claiming that there was no significant legal grounds for the HOA to force the HO to retain the fence. Only advice they both provides was that the HO might alienate and anger the HOA and community members.
- As an apparent concession, the HOA is willing to compromise by paying to move the fence from within the property to the edge but they still would expect to keep in on the property (in a utility easement section).

May be the only argument, but is also the strongest argument - if the fence is consistent around the perimeter, then every HO has the right to expect continuity of sameness. That's what they bought into.



If you want to retain children, animals, etc - then propose a solution that accomplishes what you want but does not affect the appearance significantly. When you moved in, the fact that the fence was purely cosmetic was readily available - not something to complain about now - but possibly something to talk about with the current board.



IMHO, the best way to test the quality of these legal opinions is to ask the lawyers if they will take the case on contingency.



IMO, HOA will have a utility easement no matter what. Surprised that HOA is willing to pay to have fence moved at all - could be expensive if all HOs ask for the same thing. I would vote against it if I was on your board.

Big question seems to be whether HOA will allow an unobtrusive interior fence or mesh or wire or something that can provide some containment. If board is willing to talk about it, definitely worth trying to work things out.

All the major utility companies could install, repair etc. on the easement. (just wanted to correct myself because I said "the utility company" in my previous post)