Can HOA force non-HOA home owners to conform to their fencing requirements?

Since HOAs are private (and I'm not a resident of your state), I would operate on the assumption that non-HOA properties are NOT subject to HOA demands.

My compromise would be to accept the "cheap" fence valuation from the non-HOA properties and have the HOA fund the "upgrade" of the non-HOA fence sections so that it meets your HOA standards OR simply install a completely new fence wholly on HOA property while removing the section of the legacy fence that's controlled by the HOA, leaving the incomplete non-HOA fence to be removed by the non-HOA properties.

There are few ways to get what you want. The fact that non-HOA property owners will even engage on fence replacement is the most positive aspect of this negotiation. There's no need to fight or think of hiring lawyers unless this is one huge fence.

From a quick search, that the two neighbors (one a HOA member, and the other a non-HOA member) are legally obliged to share the costs of the fence appears to be true. My best guess is this amounts to a contractual agreement between the two neighbors.

I went looking for statutes and case law on this. At the moment, I cannot not find anything particularly helpful and spot-on. But what does occur to me is that the HOA is fining the HOA member in order to force the HOA member to violate a kind of contract the HOA member has with the non-HOA member neighbor.

Two "contracts" seem to conflict here:
-- the contract the HOA has with the HOA member, via the HOA's covenants
-- the "contract" the HOA member has with the non-HOA member, via case law or maybe statute.

I suspect, but have not confirmed,

-- that the older contract is the contract that would control in this case.

-- that the older "contract" here is the one between the HOA member and the non-HOA member.

-- that the developer-declarant had a duty to write the covenants so as to respect the "contract" already in place between the declarant's land and non-HOA member when the HOA land was being developed. The developer-declarant can't just write up contractual terms that screw over the non-HOA neighbors.

I think a court would invalidate the HOA's covenant for the fence in question. I think a court would declare that the above-mentioned fines are unlawful.

If the law on fences is Colorado case law or statute, one might also say that this state case law trumps anything in the HOA's covenants to the contrary of Colorado case law or statute. (This is the same idea as federal/state fair housing law trumping anything in a HOA's covenants that is contrary to federal/state fair housing law.)

Not a CO resident ...

Good topic, though.

It would seem reasonable for the HOA to maintain the perimeter fence IF the HOA owns it, or owns the property it is on.

After rereading the post, it seems that HOA is maintaining some perimeter fencing, that facing public land. But, the HOA is not maintaining fencing facing other properties that are not public land.

That the developer built the original fences - whether facing the public, or other private land - is probably not relevant?

So, I’m gonna guess the HOA can be responsible for, and obligated to, maintain fences facing public land (roads, parks, even county access lanes), but may have no responsibility for the fences facing another neighborhood/private property.

That's the crux of it. Does the HOA need to pay for the fence to retain the right to enforce restrictions on how it is built? Or is it a piecemeal kind of arrangement where fences disputes from non-HOA members are negotiated as they come up. If there is a dispute over a fence replacement - deal with it on a one on one basis.

I am seeing signs that such agreements often exist in Colorado for fences and walls. I think it's possible such an agreement may exist in the OP's case. BluM, have you contacted the County Clerk and asked how you can check to see whether such an agreement exists?

I wonder if the plat might say something about such an agreement or covenant for same.

If said agreement says something like the two neighbors (a HOA member and non-HOA member) have to pay equally to restore the fence to new condition, then this of course changes everything.

All really good info and lots of food for thought. Clearly, I have a lot of research to do and I appreciate all the leads.

No - it's more a matter of enforcing the code for fencing on the HOA member, even if the HOA member cannot come to agreement with the non-HOA member. Obviously, the non-HOA member is not obligated to comply. If enough pressure (fines) is put on the HOA member, they will have to pay for the fence themselves or do whatever they need to do to comply with the HOA code.

Been there and done that with my HOA board.....it makes things easier and the HOA gets what it wants aesthetically.

Because perimeter boundary fencing for the HOA isn’t thought of by the HOA as common area if it backs onto a non HOA home owner’s yard versus a public street or the town lake. The non HOA home owners on the other side of this boundary fence are upset at the state of the fence and consider it the development HOA’s responsibility to maintain. They have photos of when the boundary fencing went up on the HOA side of the property line. Some of the non HOA home owners have fence posts still from old fencing running parallel to the development boundary fencing. They recall when the development was just farmland.

Good point. Thanks.

A surveyer definitely might need to be consulted to determine the placement of the fence along the property line as the development's fence was built less then a foot (ish) from the old, existing fences along the property line and it's probably a close call. You can still see the old fence posts right next the development's boundary fence.

I've gotta think that the development fence is on the HOA side of the property line by 6-8 inchs or so, give or take, unless the old non HOA fences the HOA fence was build next to were on their side of the property line. Hard to say.

The non-HOA home owners use the development's fence as their back yard fence with their yard ending at the HOA boundary fence. Their side fences connect to the development's boundary fence. The old disparate fencing that used to be their back fences has as far as I can tell been taken down over the intervening 23 years since the development was built, the development's fence being a good one. I can't quite get a read on the Colorado interpretation of what constitutes use of a fence. The idea being that if you are using the fence in question as your back yard fence, you are likely responsible for half of it. If that's the case, enforcing the HOA restrictions gets complicated.

I am still having issues with this so Blu, will answer a few questions:

1. Is the HOA paying to maintain some parts of the perimeter fence?

2. If YES to the above, what % of the fence does the HOA maintain?

3. What would be the cost of repairing/replacing the section being discussed?

Nothing personal Blu, but I see this as you trying to weasel the HOA out of paying for what I think they should be paying for.

Reread all, again.

I am simply not convinced that there are two types of perimeter fencing - part that is HOA responsibility and always has been, and part that is the responsibility of the property owners and always has been.

It it the mixture of the two, perhaps without documented clarity, that is causing confusion.

I can't understand why it would be presumed the HOA is responsible for all fences simply because they are responsible for some fences.

Do your HOA's covenants state as much?

I too have been pondering the points GeorgeS21 just made. Suppose this HOA's covenants in fact do say that: (1) the HOA maintains the fencing facing public land; and (2) individual HOA owners maintain the fencing where their lots' fencing faces privately-owned land. Why would the covenants do this? Is it because an owner of fencing facing public land has no duty under Colorado statutes or case law to maintain the fencing to a standard set by the governmental entity that owns the public land? Whereas owners of fencing facing private land have some duty under Colorado law to coordinate some with their neighbors who own the private land, especially if the fencing is dead-square on the boundary of the adjoining lots?

It seems like a few of the posters here are saying the fencing covenants on their face are so unreasonable that, if push came to shove, a court would order that the HOA be responsible for maintaining all the fencing (regardless of whether the fencing faces public land or private land).

The courts see HOA covenants as contractual terms to which all agreed when they bought into a HOA. I am not (yet?) persuaded this HOA's covenants are unreasonable in distinguishing between lot owners for the purpose of assigning fencing maintenance responsibilities.

I wonder if the law BluM references, in general terms, above is mostly or entirely from the law on "partition fences" that separates agricultural land from grazing land. From googling, Colorado appears to have exactly two statutes on the subject:

==== Start Quotations from Statutes ====
Colo. Rev. Stat. 35-46-112 Partition Fences
"Where the agriculture or grazing lands of two or more persons adjoin, whether or not such lands are farmed or grazed, it is the duty of the owner of each tract to build one-half of the line fence, such fence to be a lawful fence as described in section 35-46-101 .  When the owner or tenant of any agricultural or grazing lands owns a previously erected lawful fence upon any line between such land and the agricultural or grazing lands of any other person, and such other person or anyone holding under such person, occupies the adjoining land, it is the duty of such owner to pay the person owning such fence one-half of its cash value."

Colo. Rev. Stat. 35-46-113 Cost and repair--how recovered
"Partition fences between agricultural and grazing land shall be erected and also kept in repair at the joint cost of the owners of the respective adjoining tracts, except as otherwise agreed by such owners.  If after thirty days written notice, served personally or by registered mail by either the owner or tenant of one tract upon the owner or tenant of the other tract, such other owner neglects or refuses to erect or repair one-half of the partition fence, the person giving notice may proceed to erect or repair the entire partition fence and collect by a civil action at law one-half the entire cost thereof from the other owner.  Any judgment obtained against the owner of any land for the value of his share of any such partition fence or the repair thereof shall be a lien upon such owner's land to which such fence is appurtenant, and a special execution may issue and be levied upon the land to which such fence is appurtenant as in the manner now prescribed for the levying of an execution under the foreclosure of a mortgage upon real property.  Such land may be sold under sheriff's sale for the purpose of satisfying such special execution in the same manner as is now provided for the foreclosure of mortgages on real property."

From Colo. Rev. Stat. 35-46-101 Definitions:
" 'Lawful fence' is a well-constructed three barbed wire fence with substantial posts set at a distance of approximately twenty feet apart, and sufficient to turn ordinary horses and cattle, with all gates equally as good as the fence, or any other fence of like efficiency. Railroad right-of-way fences constructed in compliance with the statute in force on the date of construction and maintained in good condition shall be considered legal fences."
==== End Quotations from Statutes =====

BluM, how likely it it that these old fence posts held fencing that was bona fide, statute-required "partition fences" (see above), with said partition fences being the statute-required barbed wire and designed to keep livestock from crossing onto another owner's farmland?

I imagine Colorado case law is clear that the maintenance of fencing that sits exactly on the boundary lines of subdivision lots (no more farming and cattle) is the equal responsibility of owners. But I presume the developer's fence (1) is not mere barbed wire, and (2) it does not sit right exactly where the old fence sat.

God willing a surveyor finds that the developer's fence is all on the HOA owners' sides and not at all on the non-HOA owners' sides.

Yeah, I read those statutes. The historical aspect of them is very cool. I do wish they were a little more specific. Good to concretely refer those statutes back to the situation - thanks.

I am betting the old fences were up to snuff and sufficent. The developer fence is not mere barbed wire but I am thinking that kind of language in the statutes is a little dated. The developer fence was built right alongside the non-HOA home owners' fencing, which makes sense. No need to negotiate the fence placement, then. Non HOA members state the HOA fence was never legally negotiated even though it sidled right up against their fences. If I'd had a huge tall fence installed right along my own fence I might be a little miffed by it. It is a foot higher than all the other development fencing, which again, makes sense, being the boundary. But only a surveyer can tell if the fencing is on the property line or not. It currently is the only divide/back fence between HOA and non HOA properties. You'd think, if anything, it'd have to be slightly on the HOA side. We are talking, the old and new fencing running parallel within a foot or less of each other.

I presume neither the HOA side's land nor the non-HOA owners' land is agricultural or grazing anymore. That is, neither sides' land is available for farming or livestock. Hence I do not think the two statutes I quoted apply anymore. But I agree they do give history that helps to understand the situation and seems to offer some ideas about the questions to ask.

I am a little aware of the history on account of having lived in a suburban-ish HOA subdivision that adjoined grazing land. One day cattle were grazing on the front lawns of numerous HOA owners, feasting on the carefully laid, well-irrigated and maintained grass. The HOA contacted the land owner -- an elderly gentleman who owned some 100 square miles of grazing land in the area and complained. Where I was was also a "fence-out" state, like Colorado. So I bet you know the rancher's response: "Not my problem. The law says you have to put up your own fences to keep my cattle off your HOA lots." He is correct. I believe said law dates back over a 100 years. It was the Old West meeting contemporary land developers.

I agree. When the developer first installed the fence, the non-HOA owners might have had legal grounds for objecting to the design. But at this point I tend to think "laches" (too many years have passed) would kick in, and the non-HOA owners would not be able to get the design changed.

My bigger interest as far as this thread goes is whether your past boards followed the covenants. A HOA board cannot just up and decide that, say, fencing is common area and presume this action is lawful. If the covenants do not say that the fencing is common area, then such an action by the board is unlawful. Covenants are contractual terms, and by design, they are nearly always difficult to lawfully amend.

Nice, John. Clearly, that is needed in our situation.