HOA Landscape easement encroachment

Started by MichelleW9 • 4 replies • 493 views

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MichelleW9 (Washington)
Posts: 2

Posted:

I have a retaining wall with a perimeter fence on it. On one side it is 30 feet high - the fence is is even with the roof. On the other side is a HOA landscape easement that runs along the face of the community where arborvitaes are planted flush against the fence. The plat map shows fence is likely on my property. But I have no access to maintain the fence from either side due to the height and landscape easement. The fence also has decorative columns that give character to the face of the neighborhood. The HOA says I own the fence so I need to maintain- even though I can’t access. They suggest that I should remove the panels to stain it - but not sure how that would happen given the aforementioned conditions. Can I claim encroachment? Can I force the HOA to move the trees or claim the fence?

TimB4 (Tennessee)
Posts: 21,059

Posted:

you likely can't force the HOA to claim the fence.

I doubt you will get the HOA to remove trees or plantings to access the fence.

Due to the retaining wall drop off, it's likely that the fence is a requirement. You may want to visit the local property office to verify who's land the fence is on and (at the same time) who owns the retaining wall itself.

Sit down with the board (meaning in person) to discuss how you might be able to access to maintain.

I recommend taking pictures (as it's possible all board members have not actually seen the issue) and have measurements if possible. Invite the board to physically see the issue you are describing. Be polite and informative, expressing that you don't mind maintaining if access is actually available.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It sounds like the retaining wall is the HOA's and the fence on top is yours. Which you must maintain. They only APPROVE fences they don't own or maintain them.

A fence works two ways. So you can remove the boards from the other side you have access to. Other options may be someone with a lift may need to come in.

The HOA isn't encroaching if they own/maintain the retaining wall. You encroached on them by adding a fence on top.

Former HOA President

MichelleW9 (Washington)
Posts: 2

Posted:

The HOA is saying the retaining wall is mine too. It was there with the fence before the house was built so I think next step is going to the county to determine who owns the retaining wall. There is no access to the fence from either side since one side is 30 feet up and the other has arborvitae planted flush against the fence and on top of the retaining wall. So a lift would have to be brought in if they won’t move the trees which seems crazy. Could the retaining wall be considered part of the landscape easement? Also wanted to mention this is a large community that’s only about 7 years old and the builder just did the transition meeting a year ago. There’s no responsibility matrix in the documents- the plat map is all we have to go off of. This issue effects a lot of homes as several Have a large retaining wall. Appreciate all comments- thank you!

TimB4 (Tennessee)
Posts: 21,059

Posted:

The retaining wall is to keep the earth in place.

Not knowing the orientation of the wall, this could be the earth beneath your home that the wall is keeping in place. If this is the case, I would prefer that I maintain it rather then deal with another party and have arguments on maintenance, etc.

It's time you get copies of the PLAT and of your property.
you may need to have a survey done to determine the exact location of the wall/fence.
you may need to consult with an attorney versed in property law.

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