Does a neighbors lawsuit envolve the HOA?

Started by BryanG2 • 7 replies • 1976 views

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BryanG2 (Washington)
Posts: 11

Posted:

We have an out of work lawyer who lives with a homeowner in our HOA. The lawyer is extremely aggressive towards his girlfriends neighbors. I have gotten along with him. The neighbors fence is on "his" property and he is correct, the fence is over by 2 inches. The neighbor despises him so much, gets along with the actual owner of the house fine, that she will not move it. The lawyer has convinced the homeowner to sue to get the fence moved and has included the BOD in the lawsuit saying that (direct quote) "I will be adding you and the Board to the lawsuit since you are actually aiding in her on-going tresspass."
I have said from the beginning that the Board of Directors has no sides on this issue. It is a dispute between two neighbors regarding an issue that does not involve the HOA as the problem in question does not concern any common area maintained by the HOA as per our CC&R's and Bylaws.
Since the fence is in the back of the property and does not face any common area that is the HOA's responsibility do I need to be at all worried?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Bryan,

I would suggest reading your docs very carefully. In my former assn the CCRs stated that if a dispute arises between 2 homeowners over a party wall. . ."the adjoining owners shall submit the dispute to the board, the decision of which shall be binding." If your docs have wording to this effect the board should be very careful about what they do. Whether they take some action or not I don't know that the lawsuit would involve them. On the other hand, if your docs are silent and the board has not gotten involved with this dispute then I would think the assn has nothing to worry about. But if this guy in truthful in saying the HOA will be added to the lawsuit then I would suggest the board should contact an attorney. Even if the board is not involved in the dispute you should have legal counsel representing the assn's interests.

DJ1 (Ontario)
Posts: 798

Posted:

Who built the fence, the developer before turnover? If after, by the homeowner, did the ARC approve it/plans? Is it maintained by the HOA?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Bryan,

It's not uncommon to get dragged into a lawsuit between two other parties if a lawyer can establish even the tiniest connection. Take it from one who knows from personal experience several years ago. This is done all the time and you can find plenty of similar cases in the news. In this case I'm guessing the board is "aiding" the offending party by not requiring the fence to be placed on the fence-owner's own property when it was built, and has continued to let it go by not requiring that property lines be observed.

Why the lawsuit is the first place? Does either owner actually own the property? Are you saying that it is not common area? Have you ever heard of adverse possession? There are states that have adverse posession clauses in their real estate laws. Basically this means that if a person has the use of your property for a long enough period of time, you can no longer claim exclusive right to the property in question. In the case of a fence being over by 2 inches, under adverse possession, this could mean that after a period of time one owner would lose the 2-inch strip of property along the fence, and the other owner would gain the 2-inch strip of property. It's great to be friendly with your neighbors, but you still have to take care to protect your property.

I don't know if your state has adverse possession clauses or not. Maybe you should check. This could be the reason for the lawyer advising the owner to sue to have the fence moved. A lawyer would likely be aware of such clauses.

BryanG2 (Washington)
Posts: 11

Posted:

Quote:

Posted By DJ1 on 04/15/2008 1:09 PM
Who built the fence, the developer before turnover? If after, by the homeowner, did the ARC approve it/plans? Is it maintained by the HOA?

The homeowner had the fence put in, it is not a fence but a pre-manufactured fence type partition that the Home Depot sells, when she moved in three years ago. Prior to my being in the BOD. In reviewing the old files I do not see anything approved anywhere, however our CC&Rs only allow us to have control over things that face the street (private roads owned and maintained by the HOA) or common area's (owned by the HOA). Out of the 33 homes in our neighborhood all but 8 completely face the street or common areas. This fence issue falls between two of the 8. My overall concern is not who is right or wrong, but that the person who placed the fence is on the BOD and the lawyer neighbor has put the Board on notice that we are "..possibly implicated in helping a fellow board member in her continued trespass." Since the problem is on a board member (on the board since last year) does this actually envolve the HOA BOD?

TammyO3 (Texas)
Posts: 46

Posted:

anyone for any reason can attempt in involve the HOA in any lawsuit. It doesn't mean it is right, but it is frequently done!

Most people only include the HOA when they feel that there has been no support or action in ways of resolving an issue that is part of the HOA.

It sounds as if nobody is really sure if the HOA is also at fault.. only legal advice from an atty would suffice at this time.

SusanW1 (Michigan)
Posts: 5,202

Posted:

You said: "the person who placed the fence is on the BOD and the lawyer neighbor has put the Board on notice that we are "..possibly implicated in helping a fellow board member in her continued trespass." Since the problem is on a board member (on the board since last year) does this actually envolve the HOA BOD?"

Can't you tell when a lawyer does a shuffle? He's trying to bluff you!

First of all, the HOA, and the Board are not reponsible for the actions of Board members or any member, acting outside of Board or HOA business or activities. Individual board members cannot act in any legal capacity alone, without the Board's expressed permission.

Second, if somehow there was a link, the Board and the HOA corporation is protected collectively and individually, by the Not-For-Profit Corporation law, AND your Board's liability coverage.

Don't answer or talk about this "case" with this guy, unless you are actually served with papers. And when that happens, the HOA lawyer should step in.

Call this guy's bluff and tell him you can't talk to him about that subject. Would he like your lawyer's phone number?

BryanG2 (Washington)
Posts: 11

Posted:

My thought was that he was bluffing or at least shading what he really is up to. Puffing up like a cat and spitting in all directions. I have not heard a peep from him since and have avoided talking to anyone about the issue. Thanks for all the advice!

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