Miserable HOA/fence issue

[DoingHomework]

Is there some way to approach this situation from the perspective that the Amethysts should not bear the whole burden of proof about the fence?

File suit against the HOA in small claims court demanding that they remove the fence from your property. Obviously it is not yours nor does it belong to the end unit. Clearly the HOA must own it and it is encroaching on your property. They must either remove it or pay for a survey to prove that it is yours. Alternatively they could prove that it was placed by a previous owner by producing the documentation.

On a more serious note, read your docs carefully. They might not have the authority they think they have. I have no idea what your situation is, but HOA folks are notorious for thinking they have a lot more authority than they actually do.

 

[John Galt III]

Interesting that your plat does not show a fence. I like the idea of making the HOA prove it is your fence. LOL ! Do you know if it actually sits on your property? Try to check the location of the fence in reference to your property lines...if you can and if you have not already done so.
Do you know whether someone complained about your fence?

Agreed. Usually there is a requirement somewhere that your fence be erected inside your property line some distance, as opposed to being right on the property line.

 

[Chuckanut]

One problem with having rental property that comes with an HOA is that the owners have to go along with the HOA decisions, even if they disagree with them.

HOA officers are usually unpaid, volunteer positions. My guess is that they did not have to fight very hard to get the job. So, the more homeowner involvement the less arbitrary the HOA officers can be.

My take on this is that if a person want lots of control over their property and does not want to answer to others, they should buy a single family house, preferably in a county with few zoning laws. I have had both types of properties.

 

[Chuckanut]

File suit against the HOA in small claims court demanding that they remove the fence from your property.

Keep in mind that the property owners ARE the HOA. They would be suing themselves. What is the point? My guess is that the HOA officers are UNPAID VOLUNTEERS. Why in the world should or would they put up with the hassels of a lawsuit? Soon, nobody will want to be an officer and the property will degrade.

If one doesn't like how the HOA is being run, get oneself elected to its positions. That is how it works.

 

[ziggy29]

My take on this is that if a person want lots of control over their property and does not want to answer to others, they should buy a single family house, preferably in a county with few zoning laws. I have had both types of properties.

People should be careful what they ask for, because they might get it. I used to live in Houston, which had the most nonexistent zoning laws of any large city in the country. As it turned out, pretty much *all* decent and livable subdivisions had HOAs, because the alternative "anything goes" isn't conducive to a good neighborhood either -- junk in the yard, regular loud parties, people sitting in cars cranking up the bass so the entire neighborhood can hear it, people having many free-range pets, that sort of thing.

There's something to be said for finding a happy medium here.

 

[REWahoo]

There's something to be said for finding a happy medium here.

If you do locate one - even though it's contrary to conventional wisdom - do NOT strike him/her.

 

[Chuckanut]

People should be careful what they ask for, because they might get it. I used to live in Houston, which had the most nonexistent zoning laws of any large city in the country. As it turned out, pretty much *all* decent and livable subdivisions had HOAs, because the alternative "anything goes" isn't conducive to a good neighborhood either -- junk in the yard, regular loud parties, people sitting in cars cranking up the bass so the entire neighborhood can hear it, people having many free-range pets, that sort of thing.

There's something to be said for finding a happy medium here.

I agree. I think people who buy into HOA groups should consider what would happen if the HOA had no teeth. Especially, people who buy rental units, since they depend on the efforts of the HOA officers (who usually work for free) to organize and oversee much of the maintenance of their property. Not many people are willing to work for free for another person's business.

 

[grasshopper]

I was the bad boy in my last HOA. I had the typical [-]zeroscape[/-] xeriscape Phoenix yard. In the spring every inch of front yard had a wildflower on it. Well you can't have that the HOA says, but all the neighbors wrote letters and told the HOA forget it.

On the current 40 acres the deer and javelina define what will grow.

 

[DoingHomework]

Keep in mind that the property owners ARE the HOA. They would be suing themselves. What is the point? My guess is that the HOA officers are UNPAID VOLUNTEERS. Why in the world should or would they put up with the hassels of a lawsuit? Soon, nobody will want to be an officer and the property will degrade.

If one doesn't like how the HOA is being run, get oneself elected to its positions. That is how it works.

Well, my comment was supposed to be somewhat flip. The whole point is that shifting the burden of proof to the HOA will probably stop them in their tracks.

At present it seems that they have no proof of who owns the fence or whether it is even a violation. Sure, they say it is, but make them prove it affirmatively. Just because it exists in a place that it is not allowed does not necessarily mean the new owner is responsible for its removal. There are many reasons why that could be the case and some have been suggested here already.

As to "why in the world would they put up with the hassels of a lawsuit?" They don't have a choice. If they are sued they must either answer or give up and face a default judgment against them. That's really the whole point. Make their demand painful for them if it is not reasonable and they just might back down.

Personally I'd just try to work with them amicably. But the original post implied that they are not inclined to listen and are trying to make the communication unidirectional. Standing up to them by filing suit would also force them to talk. Any idiot can issue a directive. But actually solving a problem might take more skill.

 

[Chuckanut]

While I am usually opposed to suing an HOA, if a member is abusive or if they simply will not listen, a homeowner may have no other choice in the short run. Many HOA's, being staffed by volunteers, have poor records of decisions and why they are made. The minutes should reflect any approval of this fence if it was added later on. While time consuming, scanning the board meeting minutes may show results.

 

[DoingHomework]

I was the bad boy in my last HOA. I had the typical [-]zeroscape[/-] xeriscape Phoenix yard. In the spring every inch of front yard had a wildflower on it. Well you can't have that the HOA says, but all the neighbors wrote letters and told the HOA forget it.

On the current 40 acres the deer and javelina define what will grow.

You realize of course that Arizona law requires a permit to remove any wild plant. The HOA actually could not lawfully order you to remove native species. I would have had fun with that and just refused noting it was not legal for them to force you to pick the wildflowers. lol!

My neighborhood associations does not allow us to sell our house to certain ethnic groups! Obviously that's not enforceable.

 

[ziggy29]

While I am usually opposed to suing an HOA, if a member is abusive or if they simply will not listen, a homeowner may have no other choice in the short run. Many HOA's, being staffed by volunteers, have poor records of decisions and why they are made. The minutes should reflect any approval of this fence if it was added later on. While time consuming, scanning the board meeting minutes may show results.

Additionally, some HOAs seem to be ignorant of local, state and federal laws as well -- and that any deed restrictions that are at odds with the law are null, void and unenforceable.

 

[Chuckanut]

My neighborhood associations does not allow us to sell our house to certain ethnic groups! Obviously that's not enforceable.

Why? Do they not like New Yorkers and Californians?

 

[Amethyst]

Status update

Thought it was time for a status update. The discussion on this thread has been very interesting, and I thank everyone for their insights. Please let me make it clear that we bought the property, knowing it had covenants and a HOA. We wanted those things for our own protection.

At present it seems that they have no proof of who owns the fence or whether it is even a violation. Sure, they say it is, but make them prove it affirmatively.

We have cleared up the fence issue, but are not yet out of the woods. If I have time, and you all have patience, I'll discuss the other things in another post.

But the fence. As some of you advised, we sent a nice letter asking the HOA to explain why they think we own the fence.

Thursday night, we met for 15 minutes with 3 HOA members. They told us that the fence was a "party fence," erected by the builder, so both units are responsible for it, and nobody has to put in an architectural request. This was conveyed with perfect aplomb and no apologies, as if they'd known this all along, and we should have known it, too. Actually, I believe, it's the community management co., who are paid through our monthly dues, and are the intermediaries between us and the HOA, who should have known about the fence. Instead, they blindly slapped us with the "violation."

As an example of the mgmt co's incompetence: I learned, by devious means, that two original complaint letters (the fence and other "issues") were sent to us last July, by e-mail, to an e-mail address that was off by one digit.

Since we never got the e-mail, everyone assumed we had blown it off, hence the nasty second notice by certified mail. Had we not received the second notice, we would have been automatically fined once a month, resulting in a lien on our property. I have requested that ALL future notices be sent to us by U.S. mail.

More to come, if you are still interested,

Amethyst

 

[Sue J]

More to come, if you are still interested,

Amethyst

Still interested.

My neighborhood associations does not allow us to sell our house to certain ethnic groups! Obviously that's not enforceable.

Our neighborhood also had a history of owners not being allowed to sell to certain ethnic groups. By the time we purchased in 1983 that was no longer included in the wording but we heard about it from neighbors who were here before us.

 

[FreeAtLast]

We had a dispute with a neighbor over where the previous owner placed the fence. It was pretty clear without the survey because our sprinkler was in his yard.
We each did a survey at our own expense. He admitted fault and moved the fence after he had to move a new pool heater that he just put in next to the fence.

Surveys are done for such reasons. I was not happy to have to pay for it, however, I just felt it was part of the cost of owning a home and establishing correct the correct boundaries.

I felt it was better to do it then instead of waiting until I tried to sell the house.

 

[Chuckanut]

Amethyst, how are the HOA officers selected? Surely the homeowners can get rid of the officers and the management company.

 

[grumpy]

For those who are really interested in HOA issues I recommend you register at:

hoatalk.com

and participate in their discussion forum. Also the home page carries links to articles about HOA's from all over the country.

We moved to an HOA 7 years ago that was still under the control of the developer and was horribly mismanaged. I got together with a small group of activist homeowners, incorporated as a Virginia non-stock corporation (to avoid personal law suits by builder). The corporation began a series of monthly emails to all owners highlighting a different issue each month.

When it finally came time to elect a homeowner board, 3 of the activists were elected and I was appointed to the Finance committee and eventually became chairman. We are slowly turning things around but it takes a great deal of effort.

 

[rescueme]

Exact opposite is in the local code in my town and most others in the area. The good side must face your neighbor.

That's the case in our area, also.

BTW, it keeps the kids from climbing the fence and into your yard, since they won't have the support structure to aid in scaling the fence ...

Of course, that's why I also keep the .50 cal on hand (along with a couple of mean dogs) to take care of those urchins (just kidding )...

Keep the h** off my grass (no, I'm not kidding) ...

 

[rescueme]

Why? Do they not like New Yorkers and Californians?

 

[Ronstar]

Its typical for such a fence to have 2 good sides. I dealt with a village in getting approval of a commercial use next to a senior housing project. The seniors had a very active HOA. They convinced the village that they had to approve the design also. We spec'd a cedar board on board fence with brick pillars that was architecturally pleasing on both sides. Then we gave a presentation to the village board and HOA showing a mockup of the fence. We even had to design the slat spacing so that minimal light could pass through from the commercial to the residential side.

 

[Brat]

Management companies can make mistakes. Were I in your HOA I would require that the management firm advise the HOA in advance of any notices of violation they plan to send on your behalf and why they believe them to be required. Also the management firm should be required to demonstrate that they have personally discussed the issue with the home owner or state what that was not done.

A friend of mine has an apartment building. His property management company recently sent an eviction notice to a former tenant, it was posted on the vacant apartment door and in that apartment's parking spot. He was upset as eviction notices are included in the renters credit report which are difficult to correct.

 

[Amethyst]

Brat, maybe I haven't been clear - after all, it is a messy, bureaucratic situation - but the violation notices originate with the HOA board members, not the mgmt co.

The mgmt co. is only the go-between and "enforcer." It conveys violation notices to homeowners, and relays homeowners' responses to the HOA board members, who, meanwhile, are going around inspecting to see that the homeowners are doing things to the HOA's taste. The mgmt co. also automatically fines homeowners and turns cases over to an attorney, who is paid out of our dues.

Until 18 months ago, we never had a single complaint about our town house. In the last 18 months, the HOA board members have been filing so many complaints (not just about us) that it seems the mgmt employees, unused to so much work, are making careless mistakes, yet it also seems impossible to hold them to account for those mistakes.

Some have observed that residents and HOAs hate landlords, and that we may be feeling a backlash from this sentiment. We don't want to let this notion run away with us, as it would be very difficult to prove. We just want to stay in compliance and not be jerked around all the time, as we have been in recent times.

Amethyst

Were I in your HOA I would require that the management firm advise the HOA in advance of any notices of violation they plan to send on your behalf and why they believe them to be required. Also the management firm should be required to demonstrate that they have personally discussed the issue with the home owner or state what that was not done.
.

 

[DoingHomework]

Why? Do they not like New Yorkers and Californians?

New Yorkers are ok, when properly cooked. Californians though are not appreciated 'round these parts!

 

[DoingHomework]

Surveys are done for such reasons.

Nearly all properly legal descriptions in Hawaii end with "more or less." It seems the original surveys were not conducted on any consistent basis. Often the surveyor would simply land from a ship and use the ship's position as a starting point. Sometimes "legal north" was based on a ships compass (which reads magnetic north).

The result is that it's really not possible to have a completely accurate survey in Hawaii that is consistent with an original legal description. I'm really not sure how the courts deal with this in a true dispute. But I've heard that disputes based on a few feet of property line uncertainty are rarely entertained because they are not possible to resolve definitively.

The Big Island of Hawaii is also notably the only place in the United States where there are still a few parcels of land that truly are "no man's land" - they are not owned by anyone, not even the state or federal government.