Who maintains the fences?

Started by DavidC1 • 16 replies • 3981 views

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DavidC1 (Virginia)
Posts: 4

Posted:

Anyone want to take a crack at this one before it goes to an attorney?

When this Hamlet Subdivision was developed in a "fence-in" County in Virginia, the Declarant installed approximately a mile and a half of fencing using oak boards and pressure treated pine posts. They were installed in five different bordering situations:

1. Private lot to common land
The Common Land is owned and maintained by the HOA.

2. Private lot to private lot bordering a private access and utility easement
The private access and utility is a dead-end gravel road maintained by the HOA per HOA docs.

3. Private lot to paved public road maintained by the State

4. Within a private lot to private access and utility easement
The private access and utility is a dead-end gravel road maintained by the HOA per HOA docs.

5. Within a private lot to pond access easement
The pond access easement is along the lot owner’s driveway and a grassy field.

One lot having the fence in private lot to public road situation holds horses and the lot owner has modified the fence by placing a 4th board and installing 2 steel gates.

On another lot in the private lot to common land situation, the lot owner modified the fence by installing wire mesh and placing vertical boards on the posts to hold the wire in place for the purpose of containing dogs.

The HOA documents are mute as to who owns or will maintain the fences and only address the style of fences that may be installed.

What portion of the fencing is the Home Owner’s Association required to maintain?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Daniel,

I guess it's a toss-up if your docs don't address this issue. I can tell you how my docs read regarding our walls. Walls that separate the homes are maintained by the h/o. All the perimeter walls are maintained by the assn. If a wall on a h/o's property abuts a street or common area it is maintained by the assn. Perhaps your fences (which are like our walls) should be maintained the same way.

Regarding the changes made to some of the fences, regardless of who owns the fence, the changes should not be in violation of the CCRs or should have received architectural comm. approval. I especially would not like the fence with the mesh wire -- that, to me, would look tacky! I would think that installing a gate would also require A/C approval as it changes the appearance of the property.

HB (Oregon)
Posts: 143

Posted:

First, I would say any changes to the existing fence would need architectural approval.

If a fence/wall is on HOA common areas, then the HOA is responsible.
If a fence/wall is on a private Lot, then the homeowner is responsible.
If a fence/wall is on both HOA common areas and a private Lot, then the cost needs to be divided.

*Please note that I said "ON". A Lot has a definite seperation from common areas. Figure out where that is and where the fence lies and you have your answer. IMO.

If a homeowner modifies a fence/wall on HOA common property, the HOA is still responsible for the original style of fence, but not the modifications (ie. metal gates, mesh wires).

*If they don't "own" the fence, they should not be modifying it.

DwightT (Idaho)
Posts: 664

Posted:

FWIW: Our CC&Rs specify that fences are the responsibility of the adjacent homeowner. If the fence is between a homeowner's property and any common area, it is the responsibility of the homeowner to maintain the fence. The only fences that the HOA is responsible for are the ones that do not have an adjacent homeowner (fencing off the drainage ditch from the common area).

TimB4 (Tennessee)
Posts: 21,059

Posted:

David,

If your Association's documents are mute, then the decision is up to the Board.

My Association breaks it down like this:

Fence between:

Private Lot and Common area - private lot is responsible
Private Lot and Private Lot - Shared responsibility of the two private lots
Common Area and public access - Association or County is responsible

As someone stated earlier - any changes to the design of the fence needs prior approval.

hope this helps.

Tim

RobertR1 (South Carolina)
Posts: 5,164

Posted:

David,
This is just a thought but the Board might consider taking over responsibility of all the fences due to the complexity of the issue. I would think if this is done the ARB could then take over control and maintenance of the fences. This would require that all fences would have to be returned to the initial construction when the association was founded or maybe grandfathered. It appears to be this problem is going to be a never ending point of contention. Is it possible to remove all the fences and the board set the guidelines for a new system of fences and assign responsibility to those properties involved.

To try and put this together under some assignment of responsibility because of where the fences abut is going to be hard to define and control. In fact it appears control of the fences has already been lost and no doubt if you start to shred the issue into smaller and smaller portions, more people will be unhappy than now. I would also assume any contentious individual conflict are going to require the old survey lines will have to be established, marked off and identified. May be if you looked at the original filing at the county planning office or the original registration at the property office establishing the association they may have files and drawing that you don't have. I know our association had a lot of stuff filed at the property office that did not survive 30 years of Board record keeping. in fact some of what was filed did not survive the counties change out of paper record to electronic records.

TimB4 (Tennessee)
Posts: 21,059

Posted:

David,

Not to muddy the water (but the effect can be the same) here are links to VA laws about fences:

55-319. When division fence already built.

VA Code Title 55 Chapter 18

Tim

MicheleD (Kentucky)
Posts: 4,491

Posted:

I agree with Robert.

The HOA erected the fences, unless I misread something.

The HOA should be the entity providing the upkeep.

I would also immediately notice the homeowners who have altered the fencing to replace to the former condition or face penalties.

That is unacceptable. It was not their fence. Why would they do that?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Michelle, I agree with me too.

But I betcha that somewhere in the deed of one of these properties there will be some notation on platt that will include the fence within the proerty lines of the unit.

It was put there years ago, just to prove I didn't know what I am talking about.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Hmm.

We erected fencing around the lake area.

The fence abutts (or in some cases is inside the property lines on an "easement") several property owners' lots.

We would never expect them to maintain the fence or repair and replace, etc.

And we would be especially irate if one removed it and replaced it with a different fence.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Michele & Robert,

As I said earlier, IMO, these fences are the same as the walls we have here in AZ. A party wall (between two homes) is maintained by the homeowners. A wall on a member's property that abuts a street or common area (including the lakes)is maintained by the HOA. All exterior walls are maintained by the HOA. I believe the reason the homeowners maintain a party wall is because it's solely on private property. The only time the BOD would get involved with a party wall would be if the homeowners could not agree on a maint. issue then the BOD would make the binding decision. This is all spelled out in the CCRs. If there is nothing in the OP's CCRs, then IMO they should definitely be amended to outline all this. BTW, all these walls were built by the developer.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary,
And I hereby make this profound Proclamation:

If it is not broken.....don't fix it!
If it is broken.........fix it!

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

Are you talking about the fence or wall?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary,
Yes!

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