Fences

I sit on the Board of my HOA. We have been dealing with an recurring issue regarding our fences. Specifically, whether or not fences that run along main arteries through and around the perimeter of our neighborhoods are considered Common Areas. These fences do form the back or side fence on individual homes but run along main drives into the neighborhood - a "common road" if you will.

The larger sections of regular fence are in dire need of repair - pieces are leaning, cracked or completed broken apart. The material is of concrete casting made to look like wood, similiar to Hardyplank. It is an eye sore to our community.

In years past, with different Board members, these fences were declared the sole responsibility of the individual homeowner's. The HOA was only considered responsible for a few, specific sections of wrought iron fence. As a result of the insistence of a previous Board member, the reserve studies in years past purposely EXCLUDED funds for any fence repair or maintenance that was not related to the wrought iron fence sections. Our attorney recently concurred that the HOA is not responsible for the fences in question.

Side note: Our MUD recently offered to replace a large section of our perimter fence if the HOA coughs up $200,000. THe MUD will then contribute the remaining $300,000 cost and sign the fence over to the HOA for us to assume responsibility of maintaining it going forward.

Our reserve fund as it stands is around $400,000 with about $125,000 already earmarked for current in-progress capital improvements.

My questions:

- Should we fix the fence along the main arteries that the HOA previously declared as the homeowner's responsibility by having the owners sign them over to the HOA?
- Should we accept the offer from the MUD to replace sections of the perimeter fence by contributing $200,000 and assuming future maintenance responsibility?
- If we do any of this, how do we pay for it?
- If we do NOT do any of this, how we did enforce a demand to the homeowners to repair their sections of fence?

Thank you!

Our attorney recently concurred that the HOA is not responsible for the fences in question. You answered your own question ... to take on that responsibility would require Amending your CCR's and majority of owners to agree. If I was a member I would not agree, and most of your other owners will most likely not agree.

To enforce you will need to send the owner's a letter that their fences are not being properly maintained per Section ??? of the Declaration of Covenants, Conditions and Restrictions and that they have X amount of time to bring their fences into compliance. Have your attorney review the letter as he can potentially determine fines for not complying or if the HOA should pay for repairs and charge the owner's an assessment fee for the repairs made.

Understood. In thinking this through, I, as an individual homeowner and not as a Board member, would probably not agree as well.

MUD = Municipal Utility District ... they provide the water/sewage functions to our neighborhoods and have easements all over the place. They are offering to help replace a section of fence on which their utility easement runs parellel.

Here is what it breaks down to: If the HOA pays for an item/repair, then ALL members are paying for it. Is this the best approach for resolving/addressing the issue?

Basically it breaks down to individual responsibility and ALL responsibility. When it comes to fencing, it's the best example of the dilemma. The HOA (Members) can indeed vote that it is responsible for the repairs and maintenance of the fences. However, that means a possible special assessment or raise in HOA dues. How many people are going to agree to pay for OTHER's issues by increased dues/assessments? Most of the time, people are going to vote it down and agree for it to be individual responsibility.

Most HOA's I find handle fencing like this... They allow an owner to install fencing or maintain the existing fencing. They give approval and make sure it's compliant. After that, they don't pay for the individual repair or installation. When the fencing becomes non-compliant, not approved, or needs maintenance the HOA has the individual responsible. A non-compliant fence can be addressed 2 ways. A fine if allowed. 2. The HOA paying for the repair and sending the owner the bill. If they refuse to pay, then the HOA can lien for that amount owed.

For me, I think it's best the HOA approach fencing on an individual level and not as a group. It can become a real nightmare trying to vote in a special assessment and then set a precedent.

> The CCR's do not make a specific reference to the fences in question. It just includes more generic language that states the homeowner is responsible for the maintenance of all exterior surfaces of walls.

If you have summarized it correctly- that's not generic, it's specific. A wall is pretty different from a fence.

If it is truly ambiguous in the CC&Rs- then it's time for a clarifying amendment.

Are you trying to state that a fence is not an improvement? I am not an attorney, but I think the section posted reads well.

Thank you for all the responses. The Board met up last night and discussed the fence situation some more. It was agreed that there was no way we could justify or even entertain the idea of coming up with the $200,000 for the MUD to replace a fence. The President's hope is that the MUD will, in the near future, offer to replace the fence at $0 cost to the HOA. It appears they have done so twice for us before. We have two sections of fence the MUD replaced in prior years that were done at $0 cost to the HOA but the HOA did assume the responsibility of ongoing maintenance.

As for the other sections of fences that require attention, the President informed me that we have actually been paying to do basic maintenance to these fences for some years now - despite them legally being the homeowners' responsibility. I was unaware we were performing any maintenance and made clear that our governing documents do not REQUIRE us to do this, but if we are - based on a precedent set by previous Boards - we need to appropriately budget for these expenses (we are currently not) and consider including the costs of basic fence maintenance (repairs, NOT replacement) in our reserve study to ensure we have adequate funds as the fences age and require more attention. I also made it a point that if we are assuming some any responsibility for the fence maintenance, it sure doesn't look like it due to the various broken, cracked or just plain ugly sections. If we continue to spend money on fence maintenance, the fences need to look like they are being maintained. If we need to spend a little more to do so, we need to budget for it according going forward and/or find an appropriate contractor to perform the repairs - rather than rely on our landscaper...

The Board agreed to my recommendations on each of the items. Thank you all! Your input was extremely helpful.

Fences potentially can be mandated when they are installed and becomes an "improvement" as noted in the first sentence or two of the document posted.