Another Fence Problem

[MoneyShot]

What is the name of your state? Virginia

Background: We're homeowners in a relatively new subdivision and have recently taken over the HOA from the builder. I'm VP on a 3-member board. Due to a lack of oversight by the builder's board and the builder-appointed management company, many homes have had archtitectural changes made without following the proper review and approval process. We're trying now to get everything in line and asking owners to submit the forms for changes, even those already complete, so we have a baseline from which to move forward.

Behind my yard is a storm drain, open on the top. (It's really a concrete ditch.) My property ends about 6 feet from the drain and the property on the other side also ends about 6 feet from the drain. The area to either side of the drain, which is about 200' long, is common property and the plats note a 20' easment around this drain (10' on either side of the center line.)

About 8 months ago the neighbors behind me built a fence right up to the concrete, well over their property line and encrouching on the common land. When submitting the forms for approval after-the-fact, the fence is shown as being along the property line rather than where it actually is. I think their attitude was "no one will say anything since no one else is using this land" and "once it's in place they can't/won't make us move it."

I've directed the management company to send notice to them that, 1) they've constructed their fence on common association property and must move it, and 2) the application submitted shows the fence in a different place than it was actually built. (Of course had they submitted an application showing the fence intruding on common land it would never have been approved.) I think that the best course to follow is to send notice telling them that it must be moved and the land restored to it's previous condition (removing posts, concrete, etc.) and give adequate time for a response and action before getting the lawyer involved. I don't expect them to be happy nor gracious about it as this will probably cost them more than a bit to do. I suspect when the fence builder showed up the owner just told him to go all the way up to the ditch rather than stop at the property line.

Can anyone see any pitfalls or problems with dealing with it in this way? What is an appropriate amount of time for them to respond or show action to remedy the problem? 10 days? 30 days? Any other suggestions? Are we (the board) on solid legal ground to demand this change be made and what argument could they make to the contrary? Can we go after the fence company since it was they who did not observe the property boundaries? I think they should know better and should have observed where the plat delineated the property end but am not sure if they have liability since the owner directed them where to put the posts.

 

[Sunbreeze67]

Hi:
It sounds a very complicated issue to deal with, as reading the first two paragraphs you're describing.

One thing of which I know is, ... as long as neighbor/neighbors surrounding the fence is NO problem, then the fence could stay. In my knowledge, particularly next door needs to speak out whether he/she does mind or not. However, even one neighbor started to complain about the location of fence, then it's needed to go.

Removal of fence is NOT cheap. It's an expensive job to do. Knowing this fact, the owner may need some time. Rather, to move the fence to an appropriate place might be easier for the owner? The 10 days or even 30 days seems not enough time, either remove or move the fence. Three months or so must be adequate, because it's not financial , but also psychological/owner's feeling involved.

Regarding the fence contractor, if there is/are some issues for the location, they asks plats. However, if the owner told them a location of the fence, then I doubt the fence contractor is responsible in this case.

 

[MoneyShot]

The homeowners in question have appropriated approximately 1000 sq ft of common HOA-owned land for their own use and have prevented access to it by enclosing it within the fence. They wanted a bigger back yard, so they just took it. We, the board, are concerned with this setting a bad precedent. At the meeting where this was brought up, I gave the example of "Fine, I want another 1000 square feet too, so I'll be taking the land where the community entrance sign is and planting corn there. Is everyone ok with that?" We're thinking also that if we do not do something now, they will eventaully gain ownership of this additional land through adverse posession.

I'm sure they will not give in easily but frankly don't give a rat's behind about their psychological or financial issues. I'm just wondering what case might they make from a legal standpoint and what is 'reasonable' in the eyes of the law as to time to demand action. The land in question is common community property which should be available to all. That it's in a little-used area should not permit or negate what has happened to it.

Ideas?

 

[Sunbreeze67]

It's called 'violation.'

For example, there are 'two' big sheds in the backyard, 7-feet big fence in the backyard ignoring or without permission/application HOA or the Zoning Office setting.

 

[TinkerBelleLuvr]

The homeowners with the fence are depriving all the rest of the homeowners of common ground. Besides that, is that an easement for utilities? The homeowners association can take the homeowner to court if necessary to remove that portion of the fence.

 

[MoneyShot]

I believe the easement is for access to that concrete culvert in case maintenance is necessary. I think phone lines may be buried back there also, at least on my side of the ditch, but the easement is marked on the plats as extending for 10' on either side. The fence is placed about 3" from the concrete, running parallel to the ditch the entire length of the property.

 

[TinkerBelleLuvr]

We have transformers in our easement. Any of those? I'm thinking that you can have the utility companies involved also.

We've been told that if we plant anything in the easement, then IF they have to come in, they'll just drive over 'em.

 

[Sunbreeze67]

Before constructing the fence, the fence contractor needs to call utilitity cos. whether any utility lines are in its proximity. Otherwise, the fence contractor is responsible for this 'mess,' if he did NOT call, such as Gas, sewer, telephone and etc. Or, one tele. line handles all of those utility-line issue.

 

[MoneyShot]

Update

UPDATE: The management company, at my direction, sent a letter to my neighbors with a copy to me (as a board member.) They were cited for not having built according to their submitted plan for the fence and also for building outside of their property line and onto common area. The letter stated that they have 30 days to correct the problem and return the common area to it's former condition by seed or sod after removing all fence posts and concrete used for support.

I honestly expected them to do nothing and was prepared to send this onto the HOA lawyer on day 31.

Last night I noticed they had moved their tent-gazebo structures away from the rear fence line in what looks like preparation for moving the fence. I hope this bodes well for what happens next and that this is resolved uneventfully.

 

[Sunbreeze67]

UPDATE: The management company, at my direction, sent a letter to my neighbors with a copy to me (as a board member.) They were cited for not having built according to their submitted plan for the fence and also for building outside of their property line and onto common area. The letter stated that they have 30 days to correct the problem and return the common area to it's former condition by seed or sod after removing all fence posts and concrete used for support.

I honestly expected them to do nothing and was prepared to send this onto the HOA lawyer on day 31.

Last night I noticed they had moved their tent-gazebo structures away from the rear fence line in what looks like preparation for moving the fence. I hope this bodes well for what happens next and that this is resolved uneventfully.

Hi;
Thanks for the Update.

You're right. The fence needed to be installed as he submitted and approved. Otherwise, the fence needed to be removed, due to zoning-violation(if this term is correct one.)

If he'd wish to put the fence on appropriate place, he may need to submit a complete new application to the HOA or Management office. It must be a lot of work and hussle for him and the family, as well.

BTW, how is your 'corn-field' doing, as having read one of your posts, above? There is NO rain drop even though focasters saying 'rain, rain, .... ' almost every day. It's SO dry and all soil seems so MUCH hungry for a good rain-drop.

 

[MoneyShot]

Way Overdue Update!

It's now July 2008. We've changed management companies last spring due to a number of issues. The old company repeatedly dropped the ball on this and too many other problems (plus their CFO stole money from our accounts --- he's in jail now!)

The new company was instructed to pursue this. A letter to the homeowner was replied to with accusations against me that I: 1) hate them because of their religion; 2) hate them because of their nationality; 3) have thrown shrubs in their yard; and 4) terrorize their two "mentally challenged" (their words) children with my lawn mower and string trimmer, thus making the fence necessary. They went on to state that the county had approved their fence, which is true except that it was not approved where it was built.

After several more back-and-forths with letters, the adult children of the owner approached the Board President (who immediately called me to be present) and asked for a compromise where the fence could remain where it was. We replied that that is not a compromise and it has to move. Then they asked if an agreement could be made to remove it when the house is sold. We said no as they may be in the house for another 20 years. The fence has to move. Then one started talking about her "poor little handicapped brothers" and I interjected with "That's too bad but has nothing to do with the need to move the fence. And are these the same two boys I see playing with the lawn mower and string trimmer within your own yard?" The they said that the fence had cost $10K and they couldn't afford to replace it. We countered with "Then we'll have it moved and settle up in court, ok?" We had consulted with our HOA attorney and he agreed that the fence must move or a bad precedent would be set. He advised to try to get them to move it but was willing to pursue it in court if needed.

30 days later and the fence is gone.

Tonight the adult son and mother come to my front yard where I'm with my young daughter, screaming about a harassing letter from the management company reminding them that the fence had to go. I looked at it and said it was sent before removal occured, but with the move there was no further issue and they could ignore it. The son was very hostile and the mother started braying again about her handicapped children. I said to her in a calm tone that her children had nothing to do with the fence issue from a legal perspective, and they they are within their rights to re-erect the fence panels at the property line but not one inch beyond. Or not re-erect if they choose. I closed with "This is a dead issue and I don't see anything else for me as a Board member to discuss with you." The son started to get in my face with some comments and I said "I'm done speaking as a Board member, but talking to you man-to-man, if you ever come on my property and speak to me in this tone again while my child is present, I promise you will regret it. Now both of you get off my property immediately or I'm calling the police."

There was a lot of yelling and screaming in their yard shortly thereafter which I was unable to understand. I'd like to believe this is the end of it but suspect it may not be. I'll update again only if something particularly interesting happens.

 

[Sunbreeze67]

Thanks for the detailed 'update.'

I do remember that last year, you posted this, interesting thread and responded because I was both side, 'violation' due to my ignorance and headache one of neighbors gave us. However, both have been resolved after amicable conversation, although there were some hasslees we needed to go through. In my case, before going to the authority, I went to neighbor's house to 'talk' by bringing papers which has detailed explanation regarding 'rules' for homeowners.

In reading your current situation, there might be 'un-ending' problem due to this, 'fence.' Because, as you may be aware of this already, a lot of folks put their constructions including fence, not energy and money but also a pride, even love for doing that. Besides, removal of any constructions might be 'nighmarish experience' to some of homeowners. This is only through the experience on both 'sides' as I described, above.

One suggestion I offer through the experience is, ... not to deal with this issue in your property as you quoted. If the neighbor would confront you the next time, tell the neighbor calmly 'bring it to the Board.'

 

[MoneyShot]

In speaking with the other Board members, we've decided to make that our policy - no casual conversations with homeowners about HOA issues and all concerns must be brought formally to the Board through communication with the management company. I had thought it would help things if folks felt they could drop by or catch me while walking and discuss matters as an intial way to bring things to our attention. I believed that people are basically good, want to maintain a nice neighborhood, and are mature. I'm wrong on at least two of those - too many people disregard the rules they agreed to upon buying in an HOA, and want to get away with as much sh*t as they can! And when called on their behavior act like 5 year olds.

The fence people have responded by calling the county on me about a shed I built in my back yard (carefully observing building codes, permits, inspections, setbacks, etc.). The inspector came out and saw that not only is my shed in compliance, but he remarked that "It's a darn nice shed!" They also have taken to standing as a group, with folded arms and glaring at me across the yards when I'm out back. I just smile and wave. I did have a motion activated floodlight installed today and am waiting to see if there's any reaction. I didn't do it in response to what's going on with them, but because we have a lot of cut through traffic from a bordering community where my yard is on the shortest route through. The timing is just that the electrician was coming for some interior work so I asked him to hook it up while here.

 

[Sunbreeze67]

In speaking with the other Board members, we've decided to make that our policy - no casual conversations with homeowners about HOA issues and all concerns must be brought formally to the Board through communication with the management company.

Then, you could talk to one of Board members or one of neighbors who understand this form of issue, although I understand that most of folks are prone to not involve.

The reason why I made an effort was we/the family hates 'hostile' environment due to the problem one of neighbors caused. We want to keep as neighborly atomosphere' as possible, particularly for the sake of our children.

In my district, there is one of county agencies that handles 'neighbor's dispute' or something like that. If you could find one in your county/district, I'd suggest that route. Because, this form of dispute might be very tough to tackle for anyone. Also, it's true that year after year, we need to deal with a lot of diverse community, then it's not suprise to hear/read that some of folks brings up their ethnic background and religion, instead of compliance set by the county or HOA.

 

[Country Living]

I did have a motion activated floodlight installed today and am waiting to see if there's any reaction.

Great update - glad it worked out OK.

I hope you made sure your light was "shielded" so it wouldn't bother any of the neighbors.