Perimeter fence to a gated neighborhood

Started by TylerD • 8 replies • 931 views

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TylerD (Texas)
Posts: 5

Posted:

I recently bought a lot in a gated neighborhood that has a iron/brick fence facing the road and a coated chain link fence running down the sides. The neighborhood has been around for 15 year or so.

The developer still owned the lot that I purchased in 2018 and had let trees, shrubs, vines, grass etc get out of control along the fence line. There is a 20 ft drainage easement (ditch) between usable land and the fence. After spending a few months of cleaning up the lot and clearing up the fence line it became apparent that they fence had damage. There was trees and limbs growing through the fence and even one of the poles was cut off looks like by maybe a tractor blade when mowing.

The developer was also the HOA for the majority of these years, it wasnt until around 2016 that a HOA mgmt company was brought in to take over and actual homeowners allowed on the board. The two developers kept two spots on the board for the next 3 years in order to still control what was decided.
During this time the HOA president who also had a home that borders the perimeter fence on one side, was told by the developers( who controlled the two board seats and had been the previous HOA) that when he bought his house it was his as the homeowner responsibility to maintain and repair the fence. So over time that became the official answer when asked about the fence, that even with the developers finally sold out and got off the board, because of what they told and enforced on the HOA President that was the boards stance.....that the perimeter fence on a gated enclosed neighborhood was the homeowners responsibility which makes no sense to me.

So what happened over time was, one side of the neighborhood had maybe two homeowners that keep their fence clean and the rest let it go wild....with trees, limbs etc coming thru the fence.
The other side of the neighborhood where my lot is was maintained by a gracious homeowner that lived in the front end that bordered the fence. They mowed, sprayed weed killer etc for over 10 years just to keep it nice stopping at my lot because there was a house on the other side of the fence that they wanted to give privacy to.

So that brings us to when I bought the lot, the fence on the property had not been maintained in the entire course of development which led to some serious limbs and trees growing thru and around the chain link in addition to the one pole that was cut off. The fence is described as common properties in the covenants per attachment.

When I brought up the damage the board quoted the second attachment as reasoning it was my responsibility.

Thoughts?

TylerD (Texas)
Posts: 5

Posted:

edit what time of file can be uploaded?

Tried to upload gif, png, jpg? one file 72kb and one 8kb?

TylerD (Texas)
Posts: 5

Posted:

posted links here

https://ibb.co/TLqcT1G common areas

second link
https://ibb.co/g74K0cz

ND (PA)
Posts: 792

Posted:

I think I agree with your Board.

However, I can't tell from what you posted whether there is vegetation growing from only your side or from both sides of the fence that caused the damage. If only from your side, then I'd say you are 100% responsible for repairs. If growing from both sides, I think it would be fair that both you and HOA are each 50% responsible.

Stating facts as I understand them, not casting blame:

- You purchased the home with no known violations in regard to this issue (because fence damage was hidden by overgrowth).
- Had the fence issues been identified previously, the prior owner should have been in violation (for causing damage to common property) and would have had to fix it prior to the sale or disclose that as part of the sale (transferring responsibility to you).
- Unfortunately, it's only been identified now, and you being the owner of the property means you are responsible. While you could try to go after the previous owner, I doubt it's worth the time, effort, and expense; and being that it wasn't a known issue at the time of sale, it would be hard to prove that they knowingly hid the issue during the sale transaction.
- All that said, due to lack of adequate maintenance, vegetation from your property caused damage to the common property (the fence). I would say that you are responsible for the percentage of damage equal to the amount that overgrowth from your property caused the damage. See my statement above.

Under regular circumstances, where maintenance is being performed on both sides of the fence, I would assume that since it is common property, then funds are being set aside in a Reserve Account for eventual maintenance, repair, and replacement of all fencing. You would see that by reviewing the Reserve Study (assuming one exists). However, this Reserve Funding would not account for damage caused as a result of negligence of bordering homeowners (your current situation). Payment for that damage would be owed by the responsible homeowner.

TylerD (Texas)
Posts: 5

Posted:

Quote:

Posted By ND on 06/10/2020 11:34 AM
I think I agree with your Board.

However, I can't tell from what you posted whether there is vegetation growing from only your side or from both sides of the fence that caused the damage. If only from your side, then I'd say you are 100% responsible for repairs. If growing from both sides, I think it would be fair that both you and HOA are each 50% responsible.

Stating facts as I understand them, not casting blame:

- You purchased the home with no known violations in regard to this issue (because fence damage was hidden by overgrowth).
- Had the fence issues been identified previously, the prior owner should have been in violation (for causing damage to common property) and would have had to fix it prior to the sale or disclose that as part of the sale (transferring responsibility to you).
- Unfortunately, it's only been identified now, and you being the owner of the property means you are responsible. While you could try to go after the previous owner, I doubt it's worth the time, effort, and expense; and being that it wasn't a known issue at the time of sale, it would be hard to prove that they knowingly hid the issue during the sale transaction.
- All that said, due to lack of adequate maintenance, vegetation from your property caused damage to the common property (the fence). I would say that you are responsible for the percentage of damage equal to the amount that overgrowth from your property caused the damage. See my statement above.

Under regular circumstances, where maintenance is being performed on both sides of the fence, I would assume that since it is common property, then funds are being set aside in a Reserve Account for eventual maintenance, repair, and replacement of all fencing. You would see that by reviewing the Reserve Study (assuming one exists). However, this Reserve Funding would not account for damage caused as a result of negligence of bordering homeowners (your current situation). Payment for that damage would be owed by the responsible homeowner.

#1)Were you able to open the links to read the verbage?

#2)The vegatation was growing from both sides of the fence.

#3) this is a vacant lot, there is no home and the original owner was the developer who did absolutely zero maintenance on the fence since the neighborhood was built. I am the first owner. From approx 2005-2018 there was no maintenance done to the fence as far as clearing, fixing broken fence poles etc. I literally had trees that had grown in thru and around the fence.

#4)In order to be negligent, there first has to be a duty. No where in the covenants could I find where there is a duty for lot owner to maintain so the alleged negligence isnt a breach since lot owner never had a obligation to maintain.

#5) below is a snipet of my response to the HOA I will send if I get pushed on it.

Article V of the Declaration, Covenants for Assessments, obligates the
Declarant, for each Lot owned by it within the Subdivision, and each
subsequent Owner of any Lot to pay the Association assessments, which
shall be used for the improvement and maintenance of “other
properties, services and facilities devoted and related to the use and
enjoyment of the Common Properties and operation of the Association”.
Association is defined as the “the subdivision"
Association, a non-profit Texas corporation, which has the power, duty
and responsibility of maintaining and administering certain portions
of the Properties and all of the Common Properties”.

The Declaration places the duty of maintaining the Common Properties
with the Association. The Association collects assessments from the
Owner(s) to pay for its duty of maintaining the Common Properties. The
Member/Owner did not breach Article IV, Section 4 because the duty to
maintain the Common Properties was with the Association, not the
Member/Owner. As an Owner who has paid its Annual Assessments for the
last 3 years, I am deeply troubled that the Association would attempt
to pass its duty to maintain the perimeter fence onto me rather than
perform its obligations as set forth under the Declaration. I look
forward to the Association’s expedited efforts to remedy its ongoing
negligence with the Common Properties.

#6) at this point, I dont care, leave the fence as it is or I can take it down. The entire perimeter fence needs to be replaced not just my portion.

ND (PA)
Posts: 792

Posted:

A couple of other assumptions I've made. Correct me if I am wrong:
- The fence is right on the property line, making property on your side your responsibility and property on other side the other property owner's responsibility.
- I assume property on other side of fence is HOA-owned common space.

#1) Yes I could open links and I read the verbiage.

#2) With assumption above, growth from/on both sides indicates a shared responsibility for maintenance . . . property owner of each side is responsible for that side's maintenance . . . as well as responsible for any damage caused to the fence by lack of maintenance.

#3) Understood. If issues were identified prior to the purchase, it should have been dealt with then. Since issues were not identified, then you purchased the lot in its present condition, including the issues you have now uncovered. This is a case of hindsight being 20/20. If you had known of the issues previously or knew that you wanted to cut the brush back, then you could have included that as part of your purchase agreement, whereupon when you saw that fence was damaged after land was cleared, you could have further insisted on repairs before you purchased.

#4) I agree that there likely isn't a duty for homeowners to maintain the fence. However, I assume there is a duty/requirement for homeowners to maintain their own lots, as well as a duty for HOA to maintain common space (on other side of your fence). Because of negligence of the previous owners to maintain both the lot and the HOA-owned common space on other side of fence, damage was done to the common property (fence). Since you are the lot owner now, and because it wasn't ID'd or fixed previously, I feel you are at least partially responsible because overgrowth from property that you now own caused some of the damage. If there was no overgrowth, there would not have been damage to the fence (other than what might happen with old age) . . . that would be stuff the HOA would be responsible for maintaining though.

#5) OK . . . I would urge caution with this approach. A more friendly, cooperative, amenable approach might work out better in the end with this particular issue as well as longer-term with other things that will likely come up. Again, as overgrowth from your property caused approximately 50% of the issues, I think you are at least 50% responsible for repairs to the fence.

#6) If entire perimeter actually needs to be replaced and there are plans to do so, then perhaps it would be fine for you to leave the fence in its present condition until the Board decides to replace it all. As I mentioned previously, I assume the fence will be replaced at some point by the HOA IAW a Reserve Study that hopefully exists. Certainly don't take the fence down without first getting approval from the Board . . . doing so will certainly cause you greater issues.

ND (PA)
Posts: 792

Posted:

Also, don't forget that the HOA you're dealing with is collectively you and all of your fellow home/property owners. The Board of Directors is likely made up of people in your neighborhood who have volunteered for the position. And the Management Company is a hired company who assists the Directors with much of the day-to-day operation of the HOA (collect assessments, maintain financials, correspond w/ owners, monitor other contractors, etc.).

The Directors makes the decisions, Officers (Pres, VP, Treasurer, Secretary) who many times are also Board Members carry out the duties of their Officer position, and the Management Company assists but does (or should do) only what the Board instructs them to do by way of their contract w/ the HOA.

I say that because many people feel and talk of "The HOA" as some sort of vague entity with omnipotent power over all homeowners in the HOA. In reality, "The HOA" is just you and your neighbors together in the form of a corporate entity.

TylerD (Texas)
Posts: 5

Posted:

Quote:

Posted By ND on 06/10/2020 12:45 PM
A couple of other assumptions I've made. Correct me if I am wrong:
- The fence is right on the property line, making property on your side your responsibility and property on other side the other property owner's responsibility.
- I assume property on other side of fence is HOA-owned common space.

#1) Yes I could open links and I read the verbiage.

#2) With assumption above, growth from/on both sides indicates a shared responsibility for maintenance . . . property owner of each side is responsible for that side's maintenance . . . as well as responsible for any damage caused to the fence by lack of maintenance.

#3) Understood. If issues were identified prior to the purchase, it should have been dealt with then. Since issues were not identified, then you purchased the lot in its present condition, including the issues you have now uncovered. This is a case of hindsight being 20/20. If you had known of the issues previously or knew that you wanted to cut the brush back, then you could have included that as part of your purchase agreement, whereupon when you saw that fence was damaged after land was cleared, you could have further insisted on repairs before you purchased.

#4) I agree that there likely isn't a duty for homeowners to maintain the fence. However, I assume there is a duty/requirement for homeowners to maintain their own lots, as well as a duty for HOA to maintain common space (on other side of your fence). Because of negligence of the previous owners to maintain both the lot and the HOA-owned common space on other side of fence, damage was done to the common property (fence). Since you are the lot owner now, and because it wasn't ID'd or fixed previously, I feel you are at least partially responsible because overgrowth from property that you now own caused some of the damage. If there was no overgrowth, there would not have been damage to the fence (other than what might happen with old age) . . . that would be stuff the HOA would be responsible for maintaining though.

#5) OK . . . I would urge caution with this approach. A more friendly, cooperative, amenable approach might work out better in the end with this particular issue as well as longer-term with other things that will likely come up. Again, as overgrowth from your property caused approximately 50% of the issues, I think you are at least 50% responsible for repairs to the fence.

#6) If entire perimeter actually needs to be replaced and there are plans to do so, then perhaps it would be fine for you to leave the fence in its present condition until the Board decides to replace it all. As I mentioned previously, I assume the fence will be replaced at some point by the HOA IAW a Reserve Study that hopefully exists. Certainly don't take the fence down without first getting approval from the Board . . . doing so will certainly cause you greater issues.

The growth on the other side of the fence is not part of the subdivision and is owned by someone else. How is the HOA going to decide which side of the fence the damage came from? What about the fence pole that was sheared off and created extra strain on the chain link and rest of the fence creating a sag for years? It is that way on both sides of the neighborhood and like I mentioned earlier, the homeowner who was mowing part of that fence left it to give the other neighbor outside of our neighborhood "privacy".

#4)Another possible pt...The drainage easement running the length of the fence on my property should have been maintained by the HOA and is common space which in turn would have taken care of the fence growth? There is a large culvert/Drainage pipe in that ditch that was cluttered with all kinds of trash (buckets, boxes, limbs, cut grass etc) that impacted community drainage. Had that been maintained properly the fence growth would have been taken care of as well. The HOA mows common property in the middle of the neighborhood as there is a water frontage easement so all homeowners can walk to the water. Why was that mowed and kept up but the drainage easement was not?

#5) I certainly do not want to go down this road if at all possible.

#6) Yes it does but I dont think they have the money to replace it. The developer did not properly maintain the HOA records and almost certain never paid the monthly dues on all of the lots he owned. Instead he had his crew do handy man jobs here and there...and for whatever reason the homeowners let it go. The annual fee is $1200 so multiply that by 50 lots and thats a lot of cash these guys did not put. In addition to the lack of taking care of the fence, they didnt pay in and had zero records....the HOA was in the red until 2018 I believe.

No where in the covenants does it say that fence has to be there. It stops 25ft from the water, what is to say that it couldnt stop 125 ft from the water?

ND (PA)
Posts: 792

Posted:

Hmmm, not sure where to go with all of that. It's hard for me to visualize the relation/location of all that you mentioned . . . easements, adjoining property, water frontage, fence, lot lines, etc. The plats, combined with yoru governing docs should indicate who is responsible for what.

If your lot goes all the way up to the fence and consists of a drainage easement, then you as the property owner are still most likely responsible for maintenance of that easement.

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