Extending Fence Line Into Common Elements

I'm an owner in a Colorado Planned Unit Development of about 90 Units. We recently replaced the perimeter fencing and patio enclosures.

Three people requested to enlarge their Limited Common Elements. The Declaration specifically states that no futher division of the Common(shared) Elements can be done.

The problem is that the BOD stated that if the owners paid for the materials they would allow it. To the best of my knowledge, this would be a violation of the Declaration.

I questioned why they approved this action and was told the management company told them they got a permit from the city. I called the city and was told they wouldn't issue a permit that was in conflict with the Declaration.

There are at least 4 board members who know what the Declaration says and the management company has a copy of the Declaration and should know what it states. Please give me some advice on this matter.

Call up the mananger and ask for an appointment, also ask for a copy of the governing documents (I am surprised you didn't get a copy at close of escrow). Ask the manager to give you a little time and education.

Thank you for your information. I do have a copy of the official Declaration. That is why I know what is in it and what it says.

Article II - Section 10 - Nonpartitionability and Transfer if Common Element - specifies "Elements shall be owned by all of the Owners of the Units and shall remain undivided.

The manager, is the management company hired by the association to help maintain our development. The BOD governs what the management company does or doesn't do.

Please expand on your definition of education.

Cpoulin,
I am sure Michele can add to this.

This provision to not partion is a very strong indication the courts would not allow this.

I have checked with our POA here and they feel as I do. If the documents say you can't partion, you can't partition. In a condo if the building were all blowed away and the vote to sell the property as directed by the covenants, then you could sell the propety and dispense the money shares to the owners.

I can not see anyway the Board can give away property, loan property for such use as a fence. There could be a case in some HOA's where survey lines were drawn incorrectly and an owner of a lot does not have access to his property, then the HOA can "designate the property for his access, after drawning up specific doccuments that do not say the property is partioned.

I would think someone would listen to reason. If not send a certified letter to the Board with a return receipt.

State your case and request they answer in writing. If they don't answer in ten days trey again same way and inform them that you will turn the matter over to attorney. Get a first visit free session with a lawyer and aske him to send letter. That will probably do it.

Tom,
I think your association may find at some point they have placed the owners in Jepordy. If you read the comments on this post you will see the problem. This can be very costly to your association if an owner comes in and disputes this acxtion.
I would looki into this very closely. If you are an HOA, a COA, a POA or a condo and registered and licensed by the state, you (the association) can not give away other peoples property (the owners own this property as a member of your association) and sell it.

robert, i quess my hoa is unique, i wont bother digging them out right now but i have read the docs and they allow for it. it they even address being able to lease a common area to outside interests. i am guessing that because the developer included some comm. properties ( a few stores that we have), that that is the reason for the design of our docs.

In a perfect world, anyone who lives in a controlled developement such as a HOA, would read, know and understand their limits and responsibilities of such living. Well, we certainly are not in that world as we can vouch for by reading all of the posts.

Then we get a Board, who SHOULD know what the documents require of each member and either chose to ignore or cannot figure out what they have read. That is when the Board allows the members to put fences on common property, and all of the rest that we have heard about.

You cannot lend, lease encrouch or borrow common property and that include installing a fence on it. You put it in, you take it out. It does not matter if the Board did or did not give approval for it. They screwed up and will be held accountable for it someplace or someday soon.

Your common elements will be on a plat map someplace and your office or P.M should have a copy otherwise, yes, the County definitely has it.If all else fails, a simple survey can determine the boundries.

cpoulin:

The City would not issue a permit that was in violation to your recorded documents, of which they have a copy and which they are held to.
So, if the homeowner or the PM is telling you otherwise, you need to have the County on board here. When they refer to the fact that no amendments have been made to the docs, they mean none have been officially recorded as changes.

So you remain left with status quo--all to be done according to your documents, using the plat plan and particularlars dictating how the enclosures SHOULD be extended.

The local officials need to take a walk thru to look at changes which have been made per the Board's OK. The Board's OK does not override municipal code and requirements. You will soon learn if it is correct or incorrect and according to code or not. The Board needs to step back and allow the local authorities to dictate what is valid or not, and all is to be done according to regulations, per declaration and local municipal code. You want to have the local authorities on the community's side, not the other way around. They have a job to do, and you want to allow them to do it.

If you need to encourage a Task Force Committee to be formed to speak with the local officials, then do it. This is not a time to point fingers, but to learn the correct way to manage building changes. All to be done for the overall good of the community itself, and to learn the correct way to make enclosure additions to avoid future building problems which may escalate into big trouble.

Paul,
In a condo, you cannot partition any common property, meaniong any property that is held jointly by all owners.

I would believe that would be the normal thing to do in an HOA. Out POA will not partition any common property, unless it is for the use of all owners. Say a playground for kids, might be limited common, I guess, if you are saying that HOA have Limited commonn property.

I suppose some parking spaces by the pool reserved for handicap could be considered Limited common property but it would be a special specific reason and in any event, it would not be deeded any different than the common property.

Straighten me out on this.

PaulM:
I agree that this matter should be handled by the county or municipality. I need to clarify: the patio enclosure is one panel, with posts and rails constructed by the Developer. They were placed in a specific location, with a specific height and length. They are located on the common element but offer privacy around the units back porch (Limited Common Element).
Changes to the specifications on the ODP would have to be submitted to the city and approved by the city prior to any change. The city wouldn't, or shouldn't approve any such request since it would change the original location and this would conflict with the Declaration.
The enclosures and perimeter fence should have been put back up in the same location as the original, since we only replaced the old with new.
Thank you for your help and I will look into the matter with the district attorneys office, since I know the BOD or P.M. won't change this now that they have received money from the owners to make the change.
By the way, the P.M. was the person who found the fencing company and when I went on the Secretary of State website to look up the company, I found that they have been delinquent for the last two years for failure to submitt annual reports.

cpoulin,

Your documents defines all the property on the developement as Common Elements. (See above) This would normally mean all property is owned by all owners. Common referring to ownership in common.

Your deffinition above considers all the common elements, not just property. It also speaks not to ownership but to use. A reserved parking space is making that property limited to use. Hence it is limited to use for specific purpose.

Reserved common elements above: Again yopu refer to use, not ownership.

In most states I believe all common PROPERTY (Has a deed issued by the state)and that deed describes the boundries of the property (LAND) . That property is commonly referred to as "Running with the Land." Property that runs with the land, in this case is all the LAND owed by the association. It cannot be partioned unless the asszociation is dissolved and the property sold and proceeds distributed to the owners of the Land.

In your post to Paul, you state property was sold to individual owners. Don't you agree that property has to convey a deed? Where did they get a deed? Ask them to show you a deed to that property. Look the individual's name up on line at the courthouse and look at his deed, does it describe this land.

IU suspect what the Board has done is assigned this property to use by the individual and is in effect charging them rent. Now normally property(land) that runs with the land cannot be partioned. It is owned not by the PM or the Board (ask them to show you their deed) it is owned jointly by the owners. If you and your brother owned a piece of land jointly, could your brother sell that land without your permission and signature?

RobertR1:
Sorry for any confusion. Before the fence and patio enclosure replacement started, the BOD let owners know they had to submitt a request for any changes to their enclosures, but stipulated they would only approve changes that were within city code and the owner would have to pay for all materials.
Three owners requested changes(extentions into general common areas) and one owner(4th) demanded to extend her area if she was paying for the cost of materials to do it.
The owners won't be charged rent, just the cost of the extra materials to do the expansion. And your right, if the area they want to expand into doesn't belong to the BOD or P.M. they don't have the authority to allow this action. This would be deemed as further partion of the common elements and would be in conflict with the Declaration.

Pauls latest is right where you should start.

I Googled "Common Property" and there is a ton of stuff there. I ran across one site (in the first 3 or 4 sites Google pulls up) that even has a e-mail feature you can ask a lawyer a direct question.

You might want to have some of this stuff when you go to the city hall or where ever to take along. Anything you can do to impress the clerks that you know what you are talking about. I usually carry a bulging folder that I constantly refer to when talking with the front line personnel. If impressed you get to go and talk to a supervisor, and if you catch their interest, they can be invaluable.

cpoulin: Once the city becomes involved, as they should, they will handle all according to their legal codes and requirements. If they tell you all has been done correctly and is within code and declaration requirements, then you know right from the source that Board, PM, owners can obviously continue as they have been. Either way, I would ask them to put it in writing to the Board and ensure also that the Board communicates the city's findings to the entire community, right or wrong.

Paul,
It doesn't matter any longer about who allowed these fences but the question is who owns the fence? I believe that the owners of the units with fences in common property are the ones responsible for their removal. Because of these being Townhomes, is there a limited common property involved? I mean, do you own the lawns behind the units or is that the common property also?

The association is responsible in the part to enforce the removal of the fences but they will not have to physically remove or pay for their removal.This is a case where everyone will point fingers and say " He said I could or they didn't say we could" and all of that story but the common area is not open to any variances--from no one.

DonnaS: It does come down to not who allowed this matter, but as to the fact that the Declaration specifies as you stated, "common areas are not open to any variances".
The only legal way that the common areas could be altered would be if atleast two thirds of all members of the association agree and the documentation be filed with the County before the action is taken.
To date there are no amendments to the Declaration recorded.

cpoulin: You are correct in one sense--it's important to note that the Declaration specifies common areas and they are not to be partitioned....etc., but its also important for you and community residents to have revealed where any problems now lie and upon whose authority were those changes made.

We are well aware of what our assn. documents "do not allow", but, does it happen anyway? Yes, all the time. We are aware of what a Board's role
is to assn. members--to ensure the dictates of the official documents are followed and to maintain their fudiciary responsibility, but, does 'sh..' happen anyway? Yes, all the time.

It is extremely important in this situation to bring in a professional level of authority (local land officials) to review the patio changes and what may be 'common ground' alterations completed with the Board and PM's encouragement and approval collectively, but without benefit of an amendment change or membership vote.