Fence in disrepair

As you didn't say whether or not your CCRs state this is the responsibility of the HOA, I can tell you from experience, fences or walls BETWEEN units is typically the shared responsibility of the two neighboring units. There is nothing that I know of that would force the other owner into sharing the cost or repairing or replacing. If the fence were part or attached to common areas, may be different story.

I also live in a townhouse community and many people have fences surrounding their patios – those are homeowner responsibility and require prior approval from the board to install or replace them. The association does have responsibility for a few fences that run along the property line between our community and neighboring houses and aren’t close to any of the units. So, let’s start there – where is this fence located? Do other people have fences, and if so, where are they located? When the board was doing various exterior repairs, did they work on any fences?

Next, go back to your CCRs and see if it defines what’s considered common area (which the association is usually responsible for). You might also look through all those papers you got at closing and see if there’s anything referencing an exterior change request by the previous owner to install the fence (if this one is at least 15 years old, there could be several).

Ideally, you should have received paperwork regarding any exterior changes made by the owner when you brought your unit, but as you probably know by now, the new owners aren’t always told everything. In fact, try tracking down the previous owner and see if he/she knows the history. If you have a property manager, you may want to ask to take a look at the file related to your unit – a good association would have records of exterior changes approved by the board so even if the owner lost his (or accidentally lost them on purpose), there would be a paper trail.

If your documents don’t say anything about fences AT ALL, that doesn’t necessarily make the association responsible. Yes, I know you say the CCRs say owners are responsible for everything within the unit, but how do you know the previous owner (whoever that was) put up the fence for whatever reason and no one questioned him/her about it? After all, this is a small association and the current (or previous board) may have just let the whole thing slide, especially if the owner paid for the work. There’s also a chance the owner did get permission and the paperwork has disappeared or everything was done verbally and there’s no proof as to who said what – especially after 15 years.

If you’re worried about this fence and you don’t have anything that will help back up your notion that the association is responsible, you may have to bite the bullet and pay to have it replaced or removed altogether. Perhaps the board would be willing to split the cost of removal and then come up with a policy everyone can live with regarding fences (updating your CCRs accordingly would be wise)

Thanks for your reply! The association is very small and has done a poor job at keeping records and is self managed without a management company. Going back to the previous owner is not an option as I purchased the unit from the county public administrator. During the main repair effort on the exterior structure, they did make repairs to one of the units fence and have replaced fences for units rearing a major street in the past. How would you interpret the "perimeter walls" term used below?

The fence in question separates the lots from one another. Here's the exactly language from the CC&Rs.

4.3 Maintenance. Each owner shall be responsible for maintaining
his residential lot within the perimeter walls of any and all improvements
constructed thereon, including fenced yards and patios,
but excluding those portions of residential lots which remain
physically unseparated or are not in any way materially partitioned
from the Common Area. Such unseparated portions shall be maintained
by the Association in conjunction with the maintenance of the Common
Area pursuant to the provisions of Section 5.3(b)(1) hereof.

5.3(b)(1) Responsibility for Common Area . The Association shall
operate, maintain and manage or provide for operation, maintenance
and management of the Common Area and all facilities, improvements
and landscaping thereon, including private driveways and streets,
if any, contained within said area, and any property acquired by
the Association, including personal property in a first class
condition and in good repair. Subject only to the limitations set
forth in Sections 5.3(c)(1) and 15.15 hereof, the Association may
enter into contracts for the services or for materials for the
benefit of the Association or the Common Area, including contracts
with Declarant.

I don’t think the perimeter wall is the same as a fence – that sound like a firewall that separates the units from each other. And what do you mean by “fences for units rearing a major street in the past?” As Richard said, this sounds like a fence that faces the street, which would be the Association’s responsibility.

What do you know about the unit fence that was repaired? If it’s the same as the one you’re talking about, you need to know what this one isn’t being treated the same. As a practical matter, it’s too bad no one looked at the CCRs to verify who was responsible for what – I don’t think the Association should pay for repairs and replacement of things it didn’t install. With a small HOA that’s self-managed, one would think a smaller group would pay closer attention to maintenance (the smaller the property, the more expensive the repair per homeowner, so fiscal prudence is a matter of survival and plain ole common sense). Apparently that’s not the case here.

You also said reserves are dwindling, which really has me worried because this association will have bigger repairs down the road, such as roof replacement and if the homeowners (all of you) don’t get your finances in order, you’re looking at a special assessment and a hefty fee increase. Somehow, I have the feeling assessments haven’t been increased in a long while (that “low cost at any cost” mentality that gets HOAs in so much trouble each and every time – the smaller the HOA, the worse it usually is.)

Due to dwindling reserves (and I bet your operating budget isn’t much better), I wouldn’t count on them doing anything about this fence because I think Richard’s right – the maintenance is likely between you and your neighbor, especially since your CCRs do say “Each owner shall be responsible for maintaining his residential lot within the perimeter walls of any and all improvements constructed thereon, including fenced yards and patios…”

You didn’t say if you’ve discussed any of this with your neighbor, so you may as well prepare to call or stop by for a chat. If he/she’s been there longer than you, the neighbor may have additional information on how this fence came to be. If nothing else, start by getting rid of the vines because they may continue to cause problems regardless of who pays for a new fence. Once you get rid of the fence, you and your neighbor can decide what to do next – maybe you could get a hedge that can double as a natural fence. If you can agree on maintaining that, it may be cheaper than a wood or vinyl fence (if you do agree to replace it with another fence, get a vinyl one – they’re more cost effective in the long run)

And talk to your board about taking a long look at the CCRs to see what needs updating (get an attorney to help you). I’m sure this isn’t the only area that’s needs clarification. With 10 homes, that would be a great project for the rest of you since I'm sure your board has enough to deal with.