Rural HOA concerning perimeter fence

Started by AlanH2 • 23 replies • 1693 views

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AlanH2 (Colorado)
Posts: 30

Posted:

Please give me your opinion on this matter:

HOA in rural Colorado community with 35 acre lots had nothing in covenants
concerning fences. Last year the HOA puts up a 2 strand barbed wire fence without permission from the property owner on outside perimeter of his lot. The owner changes it to a nice 3 pole wooden fence. HOA claims it is their fence and recently (June of 2007)passed the following covenant and was recorded with the
county:

The XXXXXXX Association Board is designated and appointed to act as the attorney in fact for all tract owners in the XXXXX subdivision for the purpose of entering into grazing leases under such terms and conditions as the Board shall deem appropriate,including, but not limited to the right of entry on and across all tracts within the XXXXX Subdivision for inspection, construction, removal, maintenance and control by the lessee or the Association of all exterior boundary line fences and gates.

The HOA is now telling the property owner to change the fence from the wood
fence back to the 2 strand barbed wire fence they originally erected. The
HOA put the fence in a 25 ft utility easement and believes that because of the
utility easement they own and control the fence.

They say if the owner does not change it back to the original barbed wire they will
do it and charge him. Also they want a gate he put in removed.

Your thoughts please.

Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

AlanH2,
I have a couple of questions for you that will need clarification before our learned posters can offer help.

First, you state that your H.O.A. passed a covenant reguarding the installation of the fence. Did your entire association (owners) vote on this amendment? This is a members obligation and the B.O.D cannot do this by themselves.

Was the area surveyed? You state that this is an easement. In my experience, a permanent fence cannot be erected within an easement. Who's easement is it anyhow? Power, water, County or Association. Both your association and the owner are installing a fence on whos property? You said that the Board installed it without the owners permission. That sort of tells me that the Board installed the barbed wire illegally.

And why would anyone object to a nice looking railed fence over barbed wire? How about safety concerns for the kids in the community with the wire?
DonnaS

AlanH2 (Colorado)
Posts: 30

Posted:

Donna,

Yes the entire association (owners) voted on this amendment.

The fence was installed on a owners lot without the HOA getting his approval. I
agree the HOA installed the barbed wire illegally (but what do I know).

And it is a good question why would anyone object to a nice looking railed fence over barbed wire. I don't know why. This property is so rural you can't
even see the fence from any of the roads.

My question is what gives the HOA the right to tell property owners what kind of fence they can put up. Nothing is in the covenants regarding fences except the newly recorded covenant I stated.

Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

AlanH2,

If the governing Docs and any Arc. committee guiddelines do not have specific types and materials requirements, then his wooden fence should be unacceptable and left alone. In that case, then the Board has no right to dictate choice of his fencing.
I am assuming that this resident has the easement as part of his property . The bad news is that easements usually allow associations to use that area for entrance and servicing.
What would I do? I would make sure that there are no Doc restrictions concerning fences,--especially hidden or in small print.
Then I would talk with all of the owners who are affected by the fence or the view of it,and see if anyone objects to his wooden fence. Reasoning with your Board? I am sure that they want to "save face" and not agree to let the wood rail fence remain but point out safety concerns against the barb wire. Does your county have wire fence restrictions? Probably not because you sound as tho you are a rural community.

DonnaS (Tennessee)
Posts: 5,671

Posted:

I forgot to ask. Was the fence installed before or after the fence was installed? That could be the answer.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Let's try this again, Got distracted by Husband.

WAS THE FENCE INSTALLED BEFORE OR AFTER THE AMENDMENT WAS PASSED?

AlanH2 (Colorado)
Posts: 30

Posted:

Donna,

The HOA put up the fence last year. The owner replaced the fence. And then
the new covenant came to being. The HOA states their power on the new covenant.

Thanks,
Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

Good,
They cannot come in and change the fence AFTER they pass a covenant unless the cov. read--"retroactive"

RogerB (Colorado)
Posts: 5,067

Posted:

Alan, do the CC&Rs require the homeowner to get ACC approval prior to putting up the wood fence? If so, it seems to me the homeowner may not have gotten approval; and if not, the Board can require it be removed.

Likewise the 2 stand barbed wire fence should not have been installed prior to giving the homeowners notice. It appears to me that the June 2007 amendment was an after thought to correct this mistake. I presume by perimeter that this fence was placed adjacent to the outer edge of the easement; and the Board wants to maintain consistancy along the perimeter of the association's boundaries.

AlanH2 (Colorado)
Posts: 30

Posted:

Can the new covenant really give them the right to take control of all
perimeter fences? Is that legal?

Alan

AlanH2 (Colorado)
Posts: 30

Posted:

Roger,

There is nothing regarding fences except the new covenant. Can this new
covenant really give them the right to take over control of fences
that may have existed for years and years?

Thanks,
Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

If the perimeter fences are on association property, then they can. I would hope that there is a budget for that.
The amendement that was passed would have the language as to where they have the rights to install the barbed wire. No, they cannot install the fence on owners personal property without permission.
Clarify the easement wording. Where is it? Are they calling common property, easements?

RogerB (Colorado)
Posts: 5,067

Posted:

Alan,
It hard for me to believe you have CC&Rs which do not require ACC approval for exterior modifications to your property. A fence is an exterior modification so do you still say there is nothing regarding fences?

AlanH2 (Colorado)
Posts: 30

Posted:

Donna,

It is not common property. 25 ft utility easment around all lots.
Seems to me the HOA is trying to control things that they are not
legally entitled to. But I really don't know.

Alan

AlanH2 (Colorado)
Posts: 30

Posted:

Roger,

The covenants were from 1987 and have not been changed till 2007. Three page
document. Nothing addressing getting permission for anything. Only building
restriction is house must be 800 square ft or larger.

Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alan,
If you could post the wording of the amendment, then Roger and I can be more informed as to what is going on. Hopefully, it is just a paragraph??

AlanH2 (Colorado)
Posts: 30

Posted:

Donna,

It is the paragraph I posted in the original question:

The XXXXXXX Association Board is designated and appointed to act as the attorney in fact for all tract owners in the XXXXX subdivision for the purpose of entering into grazing leases under such terms and conditions as the Board shall deem appropriate,including, but not limited to the right of entry on and across all tracts within the XXXXX Subdivision for inspection, construction, removal, maintenance and control by the lessee or the Association of all exterior boundary line fences and gates.

There is nothing else regarding fences or property inprovement. I could email you
all the covenants (3 short pages) if you would like to see them.

Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

YOUCH!
How did the membership ever agree to that. Sounds like they (the Board)can basically do their own thing, owner liking it or not. The only issue that I see for arguement is that the rail fence was already installed before the amendment was passed. It should be grandfathered in. State laws of any help?
Sorry to make you rewrite your original question. I had a senior moment here.

RogerB (Colorado)
Posts: 5,067

Posted:

Alan, the amendment gives the lessee or the Association the right to remove the wood fence and the right to replace it with other fencing. It does not give them the right to make the owner remove the wood fence which was installed prior to the amendment becoming effective.

AlanH2 (Colorado)
Posts: 30

Posted:

Donna,

No problem. Yes it is amazing that it ever passed. Another question I have is
even though it passed can a covenant that only affects the few owners on
the perimeter of the subdivision be dictated by the majority vote? And I still
question if the covenant can give authority now over something that has been
in place for years? Seems to me this is not legal. But again what do I know???

Thanks,
Alan

AlanH2 (Colorado)
Posts: 30

Posted:

Roger,

Do you think this covenant is legal? Would it stand up in court if challenged?

Thanks,
Alan

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alan,
Yes, as members of the asociation, being on the perimeter or not, their votes are all part of the amendment process and if it passed by whatever your documents require for passage, then it is the rule. Sorry!
But as Roger states, the Board will have to remove the wood fence, as they cannot order the owner to do the work.
Again, I question if there is a budget or funds for this work. Seems to me, there is alot of money going for fences up, fences down and fences back up.

RogerB (Colorado)
Posts: 5,067

Posted:

Alan, if properly approved and filed I think it would.

AlanH2 (Colorado)
Posts: 30

Posted:

Thanks!! Just didn't seem right to me.

Alan

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