Who Owns The Fence?

Today was both interesting a comical. Right behind our subdivision is an apartment complex. The only person we have had to file suit against this year for delinquent dues happens to be the apartment complex property manager. Our court date is in 2 weeks but this morning, she offered a lump sum settlement so we accepted it. Now...2 hours later she send an email stating that the fence that runs the length of our subdivision, which separates us from the apartments, needs repair and implied we should approach each home owner who uses the fence to have them fix it. However, I wasn't so sure that the fence belongs to our subdivision. For all I know it belongs to the apartment complex. I called our city zoning department and they said they have no plans that include a fence for either the apartment or our subdivision. So when I asked who owns the fence, they said they have no idea. This will be interesting.

That was what I was thinking. The finished side faces the backyards of the home owners and the sides with the poles faces the apartments. That is how every other fence out here has been built.

Actually if the HOA does own the fence, it will NOT be the individual owner's responsibility to fix their portion of the fence. It will be the WHOLE of the HOA responsible. The HOA works on the "Group" concept not the Individual one. So if the fence needs repaired the WHOLE HOA will have to vote to fix it. Which could require a special assessment doing so.

Sounds like sour grapes on this person's behalf. They also can not force your HOA or those owners to do any repairs. Simply request it to be done. It's up the HOA if they want to put it on the agenda or budget for it. They can threaten to sue all they want. Let them. Tell them see them in court. Bring proof. It's their burden of proof to prove your HOA owns the fence then. The only outcome then is for the HOA to be forced by the court to address the issue of repairs then. Otherwise, the ball is in your court so go play!

I don't think the apartment has a leg to stand on. Since they are not signatory to the CC&Rs, they have no legal standing.

By and large, the CC&Rs are meant to protect other members of the HOA. So if something unsightly is visible to other members, the HOA may become involved. If something is unsightly to the space shuttle or third parties, so what.

Ditto on both points.

GreggK2(Kansas):

Casting aside the issue of squatter's rights (adverse possession) claims you should take a look at your state's 2014 Kansas Statutes ch 29 Fences Articles 1 to 5 including Article 3 Partition Fences 29-301 to 319. http://www.ksrevisor.org/statutes/ksa_ch29.html

The question of who originally erected ? /allegedly owns ? /allegedly bears sole repair responsibility ?, is rarely central. ( anyway, sorting out "private" fences by sight instead of location totally off the monumented boundary line without claim to be on a lawful boundary ? How would Snake, Rail, Split Rail or Fieldstone fences be construed, inasmuch as they have no inwards nor easiest access side? How about fences designed to display good side /bad side 50 % each ? )

The bigger issue about adjacent fence duties (if any )is what do adjacent owners now have to do about boundary line fences ( which I think is what Kansas refers to as 'partition fences' above ).

Kansas - like my jurisdiction - has legislated for you to read, duties onto owners about that shared boundary line or as deemed by Fence Viewers.

The bigger picture may ( ? ) be that if good fences tend to make good neighbours, getting the neighbouring rental complex owner to go one on one with each of your owners may not be a good choice of outcomes.

If your HOA has perimeter jurisdiction or fence asset replacement scope, why not use it to check the survey lines as suggested by others above. Then get a uniform fence repair or replacement, funded like any other lawful reserve item if lawful.

Who knows Kansas fences ? Try Kansas Farmers :

( undated “Kansas Fence Law” - Kansas State University AgLaw series http://www.leavenworthcounty.org/pz/documents/publish/Kansas%20Fence%20Law.pdf
“Border Wars: The Building and Maintaining of Partition Fences" : quote ; For rural landowners, perhaps one of the most common and contentious issues involves disputes concerning partition fences. Partition fences are those that separate adjoining lands. Kansas has numerous laws concerning partition fences, but recent court opinions have pointed out the inadequacies of some of those provisions. . . ."