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End run on CC&R's with a 'legal opinion'

Started by JamesB37 • 30 replies • 465 views

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JamesB37 (California)
Posts: 351
Posted:
Our HOA has a number of areas where there are areas behind the houses that are landscaped and maintained by the HOA. Some of the areas the HOA owns outright and some of them are private property with some sort of easement indicating for slope maintenance or whatever. (these easements are on the homeowners property but outside of their fenced lot - on a slope for example.

For the past 20 years or so, these areas were always considered to be part of the 'Master Common Area'. One of our CC&Rs indicates the HOA is responsible maintain fencing and block walls that abut or face the Master Common area.

"The Master Association shall maintain all surfaces of tubular steel and wrought iron fences abutting any Master Common Area or public property and the surfaces of block walls that abut and face any Master Common Area or public property, which surface faces such Master Common Area or public property."

About 10 years ago, the HOA Board at that time watered down their interpretation of that particular CC&R, via a 'legal opinion' from their HOA Attorney. Going forward, they were now only going to be responsible for painting these fences and walls if needed, and they would not do any repair or replacement.

From what I understand, these fences and walls are in the reserve study/reserve fund. They have not been painted in a number of years (I need to look into it further) but our BOD just announced that they have a new 'legal opinion' from their current PMC Attorney. The HOA has no responsibility for these fences/walls at all. I believe they are going to say that these easements aren't actually part of the Master Common Area, they are just easements, and that particular CC&R does not apply.

They made no indication what they are going to do with the money that has already been allocated for painting. And, it's not like they just completed the painting and are now going to turn the responsibility over to the effected home owners.

It just doesn't seem right. Thoughts?
TimB4 (Tennessee)
Posts: 21,059
Posted:
It may or may not be right.

A legal opinion is not the same as a judicial ruling.

If you really want to find out if this is right or wrong you will need a judicial ruling.
This is done by bringing legal action against the Association.
SheliaH (Indiana)
Posts: 6,964
Posted:
Do you know for certain these walls and fences aren't part of the most recent study? That may have been the case 20 years ago, but reserve studies should be updated at least every five years, and common area components can and do change. For example, we had a swimming pool, but hit rid of it over 10 tears ago, so references to it in our CCRs were deleted. So begin with reading the most recent study - don't guess.

You may also need a map of the property that shows what's common area or not to see where these fences are. If they really aren't part of the common area, the homeowner may have to pay for upkeep and maintenance. Sometimes association's do find out about the jurisdiction error years after the fact and make the adjustment. That could explain what happened 10 years ago.

By the way, if you were around at the time when that decision was made, why are you bringing this up now? Maybe it could have been clarified at that time.

Since all of this is still evolving, you should go to the board meetings and express your concerns. It may be the association has paid for maintenance for years and have now found it wasn't their responsibility to begin with. If you feel otherwise - you sound as if you have one of these fences around your property - you may have to get your own attorney and perhaps a surveyor to help determine the property lines. And check the sales documents you got an closing, was there anything mentioned about the fences?
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JamesB37 (California)
Posts: 351
Posted:
Shelia

From what I can tell at this point, most recent maintenance was done in 2016. You are right, I don't know for sure about certain things that is why I need to look into it further, hence my post

Just on my street alone, all the houses have what used to be called 'Master Common Area' that runs behind their backyards. The HOA owns the property for some, for others they HOA had an easement. In any case, the CC&R reads 'abutting any Master Common Area or public property' and the word 'shall' has a pretty strong meaning in the legal world

The latest decision was just made this week and as I indicated, looking back through the minutes, they had another legal opinion back in 2012 or so that they decided only painting was required, not maintenance/repair.

I don't believe property lines to be an issue.

So, can I ask for a copy of the reserve study, do I need to make an appointment and go to the PMC office to inspect the records? I don't really know how to proceed but I would like to find out how many homes are effected by this and how much money they had in the reserve fund that is now available.
SheliaH (Indiana)
Posts: 6,964
Posted:
Yes, you can get a copy of the study. Also grab some of the board meeting minutes that were generated around the time of the discussion. You won't get a note for note accounting as to who said what (that's not what minutes are for), but there may be more information about the legal opinion.

You may also be able to get a copy of the attorney's letter as well, although you may run into attorney/client privilege.

And you still need to go to association meetings and speak up. How about driving around the community and see where the fences are located and talk to those homeowners? They might attend the meeting with you and ask their own questions.

The study should note the number and location of the fences, but while you're looking at that, grab some income and expense statements to see where the money's going the last 5-10 years of the year's end can be a start. It should be listed out by line item do you can see what tge budget2as vx. what was actually spent.

From there,, note what other common areas are covered and did they have any major repairs or replacements recently. Do you have a problem with delinquent assessments? Has the master insurance premiums increased - everyone's having that problem.

As Melissa likes to say a HOA is only funded by its owners (you and your neighbors) and inflation is a thing. If your assessments aren't keeping up with today's costs, it may be the association has had to make tough spending decisions and the fences wound up on the chopping block. If people want certain things, they have to be willing to pay for them.

That said, if the fences are as dilapidated as you say, it may be time to replace them with something more durable and low maintenance. If that's the case, perhaps you can do some research and report back to the board?
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JamesB37 (California)
Posts: 351
Posted:
Shelia, thanks for the help, I really do appreciate it.

Most of the fences are 'tubular steel' and if not properly painted and kept up, they will rust and need to be replaced (especially at the connections).

This was just announced at the last board meeting, and I am one of the effected homeowners. One of the board members commented something like ' I have to paint my fence and they should have to paint theirs' which kind of shows his mindset. Prices are going up everywhere and in California water is always a concern. Our HOA uses reclaimed water (purple pipes with not potable label) but the Board also mentioned that they recently decided to increase the watering on a section outside the walls of our HOA that no one really sees, and the price for water for that area went from $1k to around $4-5k PER MONTH.

I was at the board meeting - it was an agenda item, after the open forum, and they basically just announced it with no option for questions or comments

KerryL1 (California)
Posts: 14,550
Posted:
Has the Board shared the written legal opinion with owners? A "legal opinion" cannot negate the HOA's obligations as spelled out in the CC&Rs: to "maintain the surfaces" of the walls & fences. Only the owners with their votes can amend the CC&Rs.

As required by CA statute, you should have received an update to your reserve study with your 2023 budget and other materials. Did your PM not send these materials??? In CA, reserve studies must be updated every year with a full (site-visit) study every 3 yearsIf you were not sent the study, your PM is not doing their job OR the Board directed them to NOT send the study. You've gotten good at reviewing Davis-stirling.com about these matters. Visit their Index and scroll to Documents Inspection (I think?) Since it's required to be sent to you, you may of course get a copy form your PM.

(Say....have you written to us about these fences previously?????)
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By JamesB37 on 01/19/2023 12:31 PM
Shelia, thanks for the help, I really do appreciate it.
The Board also mentioned that they recently decided to increase the watering on a section outside the walls of our HOA that no one really sees, and the price for water for that area went from $1k to around $4-5k PER MONTH.

I'd sue them. Our HOA cut and put down mulch for a strip of land across the street about 3/4 mile long and 10' wide for years and spent tens of thousands of dollars on that illegally. the HOA does not own that land but decided without anyones input that they wanted it mowed and the trees mulched.

As far as the fence might as well sue for that at the same time. If it was only the fence I'd spend an hr of my time and paint it. A lot cheaper and easier than any other solution.
vis ta vie
JamesB37 (California)
Posts: 351
Posted:
Kerry: Has the Board shared the written legal opinion with owners? A "legal opinion" cannot negate the HOA's obligations as spelled out in the CC&Rs: to "maintain the surfaces" of the walls & fences. Only the owners with their votes can amend the CC&Rs.

No - I never saw the legal opinion from 10 years ago, and the board made no a mention of the latest opinion. That is part of the problem, they don't seem to be very 'transparent' with things, and cut down board meetings from every month to every other month.

Kerry: As required by CA statute, you should have received an update to your reserve study with your 2023 budget and other materials

That is what I thought also, that is why I used 'end run' in the title of the topic. We should get the annual budget docs in June/July. (I just remembered reading - the HOA has the OPTION to send out a SUMMARY of the Reserve Study and Reserves. Sounds like I need to ask for the FULL version?)

Kerry: (Say....have you written to us about these fences previously?????)

No - this just came up at the Board Meeting that was held this week

KerryL1 (California)
Posts: 14,550
Posted:
At D-m.com, Index, clerk on Annual budget disclosures. You'll see that the assn. MUST send a summary to owners every year. A "summary," you'll see includes a lot detail
JamesB37 (California)
Posts: 351
Posted:
Well this is a shock.... I actually kept last years 'annual' mailer or whatever they call it and was actually able to remember where we I had placed it (and they did just mail a summary, but it does have a lot of detail)

Reserve Study Executive Summary:
Site Inspection date - 1/21/22
Painting Projects: Iron Fences/Gates - Repaint, (I assume this is the item, although they are 'tubular steel' fences)
useful life - 5 years
remaining useful - life 4 years (they definitely did not paint them 1 year ago)
Current Average Cost - $53,000 -----------

Interesting that they kind of did what I would also call an 'end run' on our monthly HOA payment. They raised it 20% in 2021 (max allowed without a vote) and then the last year another 7%. "Reserve funding for Year 2023 is currently at 105.7%"
MelissaP1 (Alabama)
Posts: 13,836
Posted:
What is the reason this subject has come up? Is there complaints from the owners effected? Is it a "You" issue? Why is this being raised?

You don't mention what everything in the reserve funds are earmarked for. Do you have a list? Does the HOA have to take care of roads? Roofs? or is it this area?

Most of the time when a HOA doesn't do a project or gets a legal opinion to avoid it without monetary reasons. Is there enough money to afford this project? If so, will that mean raising dues to fill in the capital expense back? Once money is taken out of the capital fund it has to be paid back.

I have a feeling there are more projects and money concerns in play here than meets the eye. Plus keep in mind, a project you want done doesn't mean everyone else wants it done. An emergency on your part doesn't make it one for everyone else.

We had a similar issue with our previous president. The owners are responsible for installing and maintaining fences. The HOA ONLY approves the fences can be installed/materials/design. They also can remove it if it is in bad condition or fails criteria. However, a group of owners who had fences on the outside facing the road way fences needed painted/repaired. That fence line was a sound and trespasser between the road and development. Those owners felt the HOA should paint and repair that line. The HOA thinking was it is your fence, paint/repair it. It looks like after I left being President that line was painted. I am sure they had to have a special assessment of the owners to do the project. The HOA is only funded by it's owners for it's owners. So if that group of owners convinced the rest of the HOA members to "crowd" fund the project, I am sure they did whether or not they should... The HOA can decide.
Former HOA President
JamesB37 (California)
Posts: 351
Posted:
Melissa - It came up out of the blue, the BOD announced it at the last meeting a couple of nights ago.

I don't understand either, why would they go out and get a legal opinion on this. As I pointed out, the reserve fund is currently at 105% and this is a maintenance item, specifically called out in the CC&R's. I guess something that bothers me is the homeowners have virtually no input on these decisions. Just like when they raised our assessment 20% in one year. I would have at least liked to have a choice - raise the monthly assessment or perhaps instead, cut back on some services... (Do we really need a 24 hour Security Patrol, kind of a thing) Or at least explain why did they feel they needed to make this change.

I drove through a neighborhood I used to live in about 25 years ago. It was in a fairly hilly area and as the road wound it's way up the hill, you could look up at the backyard fences of a number of different houses. Most of them where tubular steel 'view' fences, painted white and they were covered it rust - and it's possible the people who live there don't even know it because they don't usually look at their fence from the outside looking in. I think it certainly reflects on the community when things, especially things that are really noticeable, are not kept up.

JamesB37 (California)
Posts: 351
Posted:
Melissa - I forgot to add, we already had a 'legal opinion' on this about 10 years ago. Now we have a new 'legal opinion' that contradicts that opinion. I don't think that is how things are supposed to work. If they want to change it, fine - I have no problem if the entire HOA votes to change the CC&Rs but who has the $$$$$ to spend suing the HOA over something like this? People 'attorney shop' all the time until they find one whose 'legal opinion' just happens to be the opinion they are looking for...

I was reading through some of the older posts and I got a laugh and would agree that how many attorneys go through law school with the dream of being a HOA Attorney?
KerryL1 (California)
Posts: 14,550
Posted:
Say, James, it's best to ignore Melissa as she's often wrong. Here, for instance, she wrote: "Most of the time when a HOA doesn't do a project or gets a legal opinion to avoid it without monetary reasons. Is there enough money to afford this project?"

You already had written, James, that your reserves are 109% funded. so your reserves certainly CAN afford it. But Melissa did not understand what 109% funded means.At leads this is very good news, James. Ask this question as at the next open Board meeting: "our reserves are over 100$ funded. This means there is over the $50,000 in them to maintain the exteriors of the fences/walls. Why re you telling us you will not paint them?"

I still say the main problem is the Board is trying to change a CC&R--amend it --without owners votes are required by your CC&Rs. That the fences are in your reserve study show the HOA IS obligated maintain them! I hope this large disclosure package was sent to owners via mail!!

Anyway, this all boils down to your last lengthy thread. How will you get rid of this rogue board? To me, there's really no point listing all of their sins on this site. And no, you don't want to go to court. You've been advised on your previous post your next logical steps if you want change. Get good candidates to run in a few months. Run yourself for the Board. UNIFY with other owners.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
It is best not to criticize someone free advice. Can you stop Kerry with telling people to ignore advice because of your bias? You and others are not always correct either. I am beyond tired of you posting ignore Melissa. I try to respect other people's opinion and advice unless it is damaging. It should be noted that every HOA is monetary motivated to save or spend money. My advice stands even if they have a good reserve doesn't mean they want to spend it or want to use it on this project. That wasmy point.
Former HOA President
JohnT38 (South Carolina)
Posts: 1,631
Posted:
Quote:
Posted By MelissaP1 on 01/20/2023 12:14 AM
It is best not to criticize someone free advice. Can you stop Kerry with telling people to ignore advice because of your bias? You and others are not always correct either. I am beyond tired of you posting ignore Melissa. I try to respect other people's opinion and advice unless it is damaging. It should be noted that every HOA is monetary motivated to save or spend money. My advice stands even if they have a good reserve doesn't mean they want to spend it or want to use it on this project. That wasmy point.

I can't speak for Kerry but one of the reasons she may feel the need to call you out is because you are often wrong and when you are, you are not capable of admitting it even when you are provided with indisputable proof. Because of this, it is important to let the poster know that any of your responses should be heavily scrutinized and verified.

By the way, saying that, "it is best not to criticize someone free advice" is another example of your skewed thinking. If the advice given is wrong then it needs to be called out. Free or not.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
In north Carolina the courts ruled that HOA's do not have to inforce the CCR's. Not sure about your state, but it's a pretty common gripe and you can probably ask a lawyer.

if it is the case then running for the board might be your best bet and it will take up a lot more time than the hour or 2 that it takes to paint that fence yourself.
vis ta vie
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Wrong by who's standard in some cases? Just because you don't like it or agree with it doesn't make it "wrong". It just makes it wrong to your opinion. Example: People want to keep arguing with me that "Suing your HOA is suing yourself and your neighbors". Thems the FACTS. Does not mean I agree with it but it's a consequence of doing so. However, people will go on and on about how "Wrong" I am for making such a truthful and accurate statement. No matter how you slice "Suing yourself and your neighbors" in a HOA it holds true. Again to repeat again and again that does not any terms means a person does not have a case in which that is necessary. (Another thing people put in my mouth as "wrong"). The consequence of the action is do not expect not pay on BOTH ends. How is that bad or wrong advice? It's just free advice one may not like or realize the consequences of.

I often find people twisting things that I state into something with their spin on it. All of sudden I am "wrong" and not to listen to me. Example is exactly what happened in this post response. My opinion is that a HOA doesn't make a decision unless it effects their saving or spending HOA money. Having the money in a reserve fund means the difference of saving the reserve money or spending it on a large project it may or may not be designated for. What is wrong with asking the OP to find out the details of what triggered the legal opinion and if the project is part of the reserves? Maybe that reserve account is at 100+ % because there will be a road or roof project coming up. Which will take 75% of that money. That will not leave them enough in reserve and collections to cover the Fence project at $53K. It may be a case of one expense over another. Would you want a new roof or paint fences?
Former HOA President
CathyA3 (Ohio)
Posts: 6,299
Posted:
Here is what jumped out at me (see parts in bold):

Quote:
Posted By JamesB37 on 01/19/2023 10:48 AM
... snip ...

For the past 20 years or so, these areas were always considered to be part of the 'Master Common Area'. One of our CC&Rs indicates the HOA is responsible maintain fencing and block walls that abut or face the Master Common area.

"The Master Association shall maintain all surfaces of tubular steel and wrought iron fences abutting any Master Common Area or public property and the surfaces of block walls that abut and face any Master Common Area or public property, which surface faces such Master Common Area or public property."

About 10 years ago, the HOA Board at that time watered down their interpretation of that particular CC&R, via a 'legal opinion' from their HOA Attorney. Going forward, they were now only going to be responsible for painting these fences and walls if needed, and they would not do any repair or replacement.

From what I understand, these fences and walls are in the reserve study/reserve fund. They have not been painted in a number of years (I need to look into it further) but our BOD just announced that they have a new 'legal opinion' from their current PMC Attorney. The HOA has no responsibility for these fences/walls at all. I believe they are going to say that these easements aren't actually part of the Master Common Area, they are just easements, and that particular CC&R does not apply.

... snip ...

As you know, the BOA's attorney represents the HOA, while the PMC's attorney represents the PMC. It can be difficult to find a good attorney specializing in community association law. But community management is a different specialty - they overlap, but they're not identical. In addition, HOAs and PMCs can become adversaries, meaning the PMC's attorney has a conflict of interest. I think that the collective wisdom from the experienced board members on this forum is that the HOA needs to hire their own attorney.

That said, IMHO the PMC's attorney is full of hooey on this one and is out of their lane. Your CC&Rs sound pretty clear to me - they state explicitly that maintaining the fencing on Master Common Area is a duty of the Master Association. The only way I could argue for the easement interpretation is if the CC&Rs did not explicitly refer to the fencing and instead had some vague language stating that the HOA must maintain "the Master Common Area". But IANAL.

If I were curious, I'd maybe get a legal opinion from an attorney who specializes in that area of the law and who has a good track record. But that's only if I thought the CC&Rs were unclear. The part you quoted was clear to me, and unless there is more language elsewhere that contradicts it (eg. making homeowners responsible for fencing adjacent to their own lots), I wouldn't bother. I mean, who does the board think is going to maintain the fencing if the association doesn't? Will they let it fall apart? Are there any liability issues if parts of the fencing are damaged or missing?

That said, it can be an uphill battle to argue that the association isn't spending enough money, even if that's true. There can be good reasons why money is tight, which others have referred to (eg. delinquent assessments or unusual expenses in the past). And boards can get really creative at coming up with reasons not to raise assessments. This works, until suddenly it doesn't and painful lessons are learned.

WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By MelissaP1 on 01/20/2023 4:38 AM
Wrong by who's standard in some cases?

Wrong about NC HOA's having to pay tax on profit in another thread according to NC tax laws which were cited and you still keep on harping that taxes have to be paid without stating your opinion might only apply to certain states and under certain circumstances.

Wrong about HOA's being able to get copy of a lease, In some states this is not allowed, yet you state it as a universal truth. thsi according to Texas and NC PCA act laws.

Wrong about HOA's not being required to give out public documents like CCR's in antoher thread. Some states require this according again to state laws.

I could go on, but these are just fromm the last 10 days or so. You never acknowledge you are wrong, you are like a broken record.
vis ta vie
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Well Wendy I am not wrong on those things. Taxes are a federal thing. Public documents do not need handed out by anyone the list goes on...
Former HOA President
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Sorry on my phone typing. The HOA is not responsible for providing public documents such as the CC&Rs or Articles of Incorporation. That is on the seller/member to do in some states. Otherwise it is up to the buyer to be informed.

There is no way possible to list every single variation of the laws for wherever the poster is from. Each state, city, and county varies. If you are asking for advice I assume it is general advice. If you want more specific advice then you have to pay for that via a real lawyer. Not one who has access to Google search.

So if you can not comprehend general advice and want it specific for your exact location go to a paid professional. Otherwise it is free general advice based on experience or education.

Btw no one here has yet been able to argue with proof the HOA is responsible for giving out public documents to potential buyers who are not members. By laws or ACC and financial records are for members only. That the HOA can control as it is theirs and not public.
Former HOA President
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By MelissaP1 on 01/20/2023 7:09 AM
Well Wendy I am not wrong on those things. Taxes are a federal thing. Public documents do not need handed out by anyone the list goes on...

Perfect exmple of you not being able to admit you are wrong

Taxes are a federal and a state thing.
some states require the hoa public documents need to be "handed out"
the list doesnt' go on, And as typical you dont back up any claim with a reference to any laws.
vis ta vie
WendyM5 (North Carolina)
Posts: 1,522
Posted:
nevada for example requires an hoa over 150 members have a website with goverening docs on it.
vis ta vie
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Did you Google that? Again public documents. Free to anyone. Does not need handed to someone.
Former HOA President
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By MelissaP1 on 01/20/2023 8:40 AM
Did you Google that? Again public documents. Free to anyone. Does not need handed to someone.

Melissa,

Public documents are not always free.

They are available, but you might have to pay. It depends on the State, County, municipality.

Not all governing documents are public.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I didn't say they were "free" for money purposes. They are "Free" to view and pay for a copy if necessary. Many places have online availability.

My point being that IF you give over a PUBLIC document it makes it "appear" you bear responsibility. It creates a responsibility perception. If I gave you a copy of the CC&R's when I was President, it would "appear" I as an officer of the HOA was providing them. However, I may be your next door neighbor being "nice" to provide you a copy of mine. Either way I don't have the responsibility of providing them. This is AFTER the person has purchased property and is now a member. If this is a potential buyer, they may also view my giving them a copy as responsible party. The only time that would be is in those states that require the seller to provide a copy AT/Before Closing.

When "little miss lawsuit" comes around because of the HOA giving out a violation, who they going to blame for NOT getting a copy or being given one? You guessed it. The HOA could be blamed because they didn't provide a copy. The person may argue because they did not get a copy then they don't have to pay dues or obey the rules. We already have people coming to this site stating their HOA or anyone gave them a copy of the rules wanting advice on how to sue. Always looking for the lawyer, realtor, title company, HOA, or seller etc... to blame/make responsible.

This is EXACTLY why the documents are made Public. That way the blame and the lawsuits for not providing them is not anyone's responsibility. Those states that have it as the Seller is kind of ahead of the game in my opinion. Although have those "loopholes" where someone buys it in foreclosure or inheritance. They may not get a copy because there is no "seller" involved.

Now if your website/HOA decides to take on giving copies or providing them on a website, then "Bravo" to your HOA. It can charge for copies. However, I would put in a statement that says these are considered PUBLIC documents and do not reflect the responsibility of other parties to provide. If you want a copy go to the courthouse or state online records departments etc. I would not indicate that HOA or myself is responsible unless I am.
Former HOA President
SheliaH (Indiana)
Posts: 6,964
Posted:
Cathy's point us a good one - and it made me think of something else. It's a good idea to get a second legal opinion, but James should know there's a chance the board might say "screw this - we'll just have ALL the fences torn down. We'll then get an updated survey showing the property lines and if a homeowner wants to put up his or her own fence, they can file an exterior change request for board approval. They're responsible for ensuring the fence isn't on association property. We'll also establish design standards (e,g. no wood - iron or vinyl only, no higher than X feet, etc."

I'm not saying this to dissuade you from clarification of the issue, but I can see some board members taking this position and other homeowners agreeing with them because they have to maintain their own fence. I'd push for another legal opinion, but start looking for a way the board can replace the fences for something that looks just as nice and us easier and cheaper to maintain. That might be tge best way to get them to do something about the current fences (crappy looking fences are bad optics, no matter who's responsible for them).
If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
CathyA3 (Ohio)
Posts: 6,299
Posted:
Quote:
Posted By SheliaH on 01/21/2023 10:40 AM
Cathy's point us a good one - and it made me think of something else. It's a good idea to get a second legal opinion, but James should know there's a chance the board might say "screw this - we'll just have ALL the fences torn down. We'll then get an updated survey showing the property lines and if a homeowner wants to put up his or her own fence, they can file an exterior change request for board approval. They're responsible for ensuring the fence isn't on association property. We'll also establish design standards (e,g. no wood - iron or vinyl only, no higher than X feet, etc."

I'm not saying this to dissuade you from clarification of the issue, but I can see some board members taking this position and other homeowners agreeing with them because they have to maintain their own fence. I'd push for another legal opinion, but start looking for a way the board can replace the fences for something that looks just as nice and us easier and cheaper to maintain. That might be tge best way to get them to do something about the current fences (crappy looking fences are bad optics, no matter who's responsible for them).

Would tearing down the fencing require a membership vote? I assume so - the walls and fencing sound substantial and are reserve items (I think). This would definitely be the case if the barriers had some functional purpose and aren't just for looks. If, for example, the walls are retaining walls or they're needed for safety reasons, getting rid of them could have insurance implications.

HOA issues are seldom straightforward or simple (much to the disgust of some) ...
KerryL1 (California)
Posts: 14,550
Posted:
James made it very certain with his citation that the walls/fences' exteriors are to be maintained by the HOA per the CC&Rs. An attorney's opinion is meaningless, so I disagree with Shelia here, tho' that's very rare. Only the Owners can change the CC&Rs with their vote.

He also showed us that their reserves are over 100% funded. BUT the study says (1/22) that the RUL is 4 years even though incorrect per James. But the board can claim they don't "need" to be painted yet. This has nothing to do with money being "tight" in his HOA, as that would refer to their operating budget. Their reserves are healthier than the majority of reserve funds in the USA.

Re Melissa's latest: For chrissake!

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