New HOA President Needs Help with Addressing Common Area Encroachment

I am the new President of the HOA. Ours is a small HOA and, as a result, we are self-managed. We have a new owner who has gone ahead and put up a fence on the hillside, which is a Common Area and thus the responsibility of the HOA to maintain, that is next to the retaining wall (also HOA property), without submitting any plans or getting any approval from the HOA, violating several clauses in the CC & Rs, to include slope control clauses, specifically stating that no permanent structure is allowed on the hillside (she dug up the hillside and poured concrete to make the fence a permanent structure). Additionally, the fence is not in "harmony with existing structures", another clause in the CC & Rs and interferes with the "quiet enjoyment" of the hillside by other owners who now have lost their view of the hillside. When her project was brought to my attention, I had a chat with her regarding the need for her to submit plans for review by and written approval of the HOA. Instead of agreeing to submit plans, she got confrontational and said she would not take down the fence and that she's an owner and so is allowed to do whatever she wants and that title and escrow has given her their blessings to build the fence. She also said that the previous owner said that she could build on the hillside, which is erroneous since the hillside is HOA property. To date, no plans have been submitted. The other issue with the fence is that by digging up the dirt and putting down concrete, she is changing the slope and other HOA members are concerned that with the rains, this may cause a mudslide as dirt can be seen coming over the retaining wall. I checked with the HOA insurance agent as well as looked at the insurance policy and mudslides is not a covered peril. Any advice on how to handle this situation will be much appreciated. Thank you so much.

Thanks George. I appreciate your response. My interest is to protect the HOA, its members, and myself as a homeowner, from further messes. Educating the other members is a great idea. So, explain the situation and the clauses violated by the new owner and the insurance implications and liabilities?

George, This may be an odd request, but may I send you a copy of what I intend to send the other HOA members for you to look over?

You don’t mention the Board in all this mess. You’re going to have to have minutes of the meeting that state that a vote was taken to send violation notices and ultimately, file a lawsuit against this person.

Be sure you have your ducks in a row and the CCRs and bylaws confirm your position. Also your local municipality should have been brought in to the mix because she altered the configuration of the property.

Did she need a permit from the local municipality to do all of this? . I am surprised that they aren’t communicating with the board. Sounds like a lot of violations are going on. But you need your entire board behind you to take the steps that you want to take - and a lawyer.

Thanks everyone!