Subset of owners to pay for a fence.

Started by ChadD2 • 7 replies • 1115 views

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ChadD2 (Oklahoma)
Posts: 2

Posted:

I moved into my neighborhood last year and purchased a home on the outside of the neighborhood that has a fence that was built by the developer and is uniform across 17 homes. I just caught wind that my HOA wants to upgrade the fence but they do not want to pay for it - they want those lucky 17 homeowners to pay for it to the tune of $100K. Is this possible?

The covenants clearly state

-Fences: All fences shall be approved by the ACC. Fencing of front yards is prohibited. Any privacy fences shall be constructed so that the framing shall be toward the inside of the owners lot. There shall be no chain link fences. No fencing shall exceed six feet in height.

There is no requirement for fences. Many of my neighbors dont have a fence because in our area of Oklahoma there really is no need.

I told the HOA there is two courses of action that make logical sense, 1. Release full responsibility to the homeowners to maintain their fence (they dont want to do this because it could potentially mess up the uniformity of the fence) or 2. Pay for the fence themselves and continue as they have in the past.

They have threatened to put a special assessment only on those 17 homes (is this possible?) My section of the fence has no damage.

The cherry on top is the fact that they increased dues to the max allowable in the covenants at a meeting that was not meant for that vote. I was told "someone on the board brought it up so we voted on it that night". Are the home owners not supposed to receive notice on this kind of stuff before hand to vote?

It also clearly states in the covenants - Voting: Each lot will carry one vote in the association. Such vote may be voted in person or by written proxy on forms provided by the HOA.

Any input would be much appreciated.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ChadD2 on 08/10/2017 4:00 PM

They have threatened to put a special assessment only on those 17 homes (is this possible?) My section of the fence has no damage.

Read your governing documents.

Often, assessments are shared by everyone equally. Special assessments are typically that way too.

I would suggest finding that section in your governing documents. Inform the Board of your findings and ask that they get a legal opinion.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Chad

Carefully read your Covenants and look for statements like meets "community standards" then argue with the fences all identical that is the community standard and the Covenant can only be changed as outlined in your docs.

Some of our owners did not like the type fence our builder installed on all 112 homes and they argued to change them. Our lawyer countered with the "community standard" in our Covenants, and they went away.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By ChadD2 on 08/10/2017 4:00 PM
I moved into my neighborhood last year and purchased a home on the outside of the neighborhood that has a fence that was built by the developer and is uniform across 17 homes. I just caught wind that my HOA wants to upgrade the fence but they do not want to pay for it - they want those lucky 17 homeowners to pay for it to the tune of $100K. Is this possible? Depends ... are the fences in the CCR's considered "common area property"? In my last HOA the City required the Developer to install fencing in certain areas. However, the fence in those areas were built on the lots and not noted in the CCR's as HOA common area property. Essentially any owner's who purchased those lots had a section of "free" 6' vinyl fence. In the future the Lot owner was required to maintain.

The covenants clearly state

-Fences: All fences shall be approved by the ACC. Fencing of front yards is prohibited. Any privacy fences shall be constructed so that the framing shall be toward the inside of the owners lot. There shall be no chain link fences. No fencing shall exceed six feet in height.
>You need to look at your CCR's regarding "Common Area Property" or "Limited Common Area Property" to see if the fences are noted. Also you might find info on your subdivision plat.

There is no requirement for fences. Many of my neighbors dont have a fence because in our area of Oklahoma there really is no need.

I told the HOA there is two courses of action that make logical sense, 1. Release full responsibility to the homeowners to maintain their fence (they dont want to do this because it could potentially mess up the uniformity of the fence) or 2. Pay for the fence themselves and continue as they have in the past.

They have threatened to put a special assessment only on those 17 homes (is this possible?) My section of the fence has no damage. I am not an attorney, but I would contend most likely NO. Generally any "Common Area Property" must be maintained by all owners equally. However, "Limited Common Area" could potentially mean that only those units who benefit are the only ones to share the cost. I am betting money that most likely the developer had to install per your local government, but most likely the owners are to maintain.

The cherry on top is the fact that they increased dues to the max allowable in the covenants at a meeting that was not meant for that vote. I was told "someone on the board brought it up so we voted on it that night". Are the home owners not supposed to receive notice on this kind of stuff before hand to vote? Depends on your governing documents and State Laws. In my state the BOD provides at the annual meeting a budget for the next year and the Owners must vote to approve. If not approved then the prior year amount stays in place. Most states require membership approval and votes to increase assessments.

It also clearly states in the covenants - Voting: Each lot will carry one vote in the association. Such vote may be voted in person or by written proxy on forms provided by the HOA. This is pretty much standard ... not sure of any question here.

Any input would be much appreciated.

CjC
Posts: 210

Posted:

Whose property is the fence on? If it is on your property, are they requiring a release for them to enter your property and upgrade it? Our covenants are specific about when the HOA is allowed to enter your property to "fix" a violation. Other than that, they would be trespassing.

ChadD2 (Oklahoma)
Posts: 2

Posted:

Quick update for you all.

My bylwas and covenants do not require a fence - it only has stipulation if you do have a fence (no chain link and less than 6ft tall and you have to maintin).

The problem here is they just dont like the fence the builder put in and want something fancier at my cost. I have no holes in my fence or missing boards. It could use some staining but I wouldnt be mad if I had to do that but it may end up looking less uniform.

After looking at the county assessors site and the assessors report from when I purchased my home the fence is clearly not even on my land.

The HOA bylaws state "Notice - Notice of all meetings, including the Annual Member Meeting, once control is relinquished by the Developer, shall be mailed to each member at least fifteen (15) days in advance of the meeting and shall set forth, in general, the nature of the business to be conducted"

My HOA has never mailed anything to the homeowners and have admitted such in writing - notice is given via a Facebook and HOA website no earlier than a week in advance.

I am ready to pull the trigger on them and say anything that they have met on or decided on in the past year since I moved in is now null due to the HOA boards violation of the bylaws.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By ChadD2 on 08/11/2017 8:42 PM

After looking at the county assessors site and the assessors report from when I purchased my home the fence is clearly not even on my land.

That is one answer. The next you need to seek is whether the fence if NOT on your land is it "Common Area Property" where everyone contributes equally to maintain and replace? OR, is it "Limited Common Area Property" where only those who benefit from the use are to pay to maintain and replace? You need to look at your governing documents to determine or hire a lawyer to help you determine. If it had been on your property and you and I were hoping it would have been an easier answer.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JanetB2 on 08/12/2017 6:28 PM

Posted By ChadD2 on 08/11/2017 8:42 PM

After looking at the county assessors site and the assessors report from when I purchased my home the fence is clearly not even on my land.

I agree.

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