Perimeter Fence

Is an easement an easement?

If a fence is in a storm water easement and inside of a private property does it mean the association is responsible to maintain the fence due to the fact it is in an easement area?

Private property is not common area is it?

The fence originally was erected by the declarant and the builder wants the association to pay for repair. My argument is that the fence is not in a common area property was deeded to them and they are responsible Right!

here is the language under the heading of Common Expenses.

The cost of maintaining, repairing and maintaining the common area tracts and
improvements located thereon, including but not limited to, signs, lights,
perimeter and any interior fences constructed by Declarant, plantings and
landscaping on common areas or on easements (if not maintained by applicable
governmental jurisdictions);

The fence is not located on a common area! The key word here is located THEREON. it is inside of the private property.

The cost of maintaining, repairing and maintaining the common area tracts and
improvements located thereon, including but not limited to, signs, lights,
perimeter and any interior fences constructed by Declarant, plantings and
landscaping on common areas or on easements (if not maintained by applicable
governmental jurisdictions);

Tye,

The part that you quoted that makes the association responsible for the repair of the fence is the part that reads: "on common areas or on easements". The fence is on an easement, therefore, the association is responsible for maintaining it.

We have a similar situation. Our association's property is landlocked. We have an easement for a road across private property that leads from the main (public) roadway to the entrance of our community. Even though the road is not on association property (therefore, not on common property), we are responsible for maintaining it.

So let me get this right we are responsible for anything on an easement including trash, grass, kids etc..

you get my point right!!

This can't be right?

The common areas shall include
but not be limited as defined below together with all easements which are for the benefit of
all lot owners. These common areas include but are not limited to the following:

Any easements or other areas which have been established for the
benefit of all lot owners or the Association, or which may be delineated
on the Plat of Topping POD, which easements are reserved for not
only the benefit of all lot owners but also those easements which are
reserved for the benefit of the Association for the purpose of the
installation, maintenance, and repairing of any improvements or any
other installations constructed within said easement areas or on any
common areas.

isn't this referring to a easement for the benefit of all lot owners sort of like a path or road not a storm water easement right?

"Common Areas" shall include but not be limited to Tracts A, B, D, E, F, G
and H , as delineated on the Plat of Topping POD. Common areas shall also mean the property
both real and personal in which the Association has been granted an ownership interest,
easement, or right of control by any written instrument including this Declaration or by
delineation and Declaration of the same on the plat map recorded for the Plat of Topping PPD

Common area is real and personal property granted to the association hence the fence is not a common element because it is private property right!

Does this state that the easement for the benefit of utility company as defined below.

AN EASEMENT IS HEREBY RESERVED FOR AND CONVEYED TO ANY POWER COMPANY,
ANY GAS, COMPANY, ANY TELEPHONE COMPANY, ANY TELEVISION CABLE COMPANY,
ANY WATER COMPANY, ANY CITY, PIERCE COUNTY, ANY OTHER PUBLIC OR PRIVATE
UNDERGROUND UTILITY SERVICE (INCLUDING, BUT NOT LIMITED TO, PRIVATE ROOF
DRAIN CONNECTIONS), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS UNDER AND
UPON THE PRIVATE STREET (S), IF ANY, AND THE EXTERIOR TEN (10) FEET OF ALL
LOTS, TRACTS (EXCEPT TRACT C) AND SPACES WITHIN THE PLAT LYING PARALLEL WITH
AND ADJOINING ALL STREET (S) IN WHICH TO CONSTRUCT, OPERATE, MAINTAIN, REPAIR,
REPLACE AND ENLARGE UNDERGROUND PIPES, CONDUITS, CABLES AND WIRES WITH
ALL NECESSARY OR CONVENIENT UNDERGROUND OR GROUND-MOUNTED APPURTENANCES
THERETO FOR THE PURPOSE OF SERVING THIS SUBDIVISION AND OTHER PROPERTY
WITH SANITARY SEWER, STORM DRAINAGE, ELECTRIC, GAS, TELEPHONE, WATER AND
OTHER UTILITY SERVICE, TOGETHER WITH THE RIGHT TO ENTER UPON THE STREETS,
LOTS, TRACTS AND SPACES AT ALL TIMES FOR THE PURPOSES HEREIN STATED.

Tye

I think you are onlyu asking for others to verify your opinion......right.

Let me ask you this. Is going down the road of getting an attorney and taking this into litigation in the best interest of the association..

It seems like we have a good argument right!

Hi Tye:

You stated that it is a fence constructed by the Declarant AND is on easement. You may want to check with your local government planning department. My guess is this situation is similar to our area in which the Local government planning department more than likely required the developer to construct the fence as part of the overall subdivision. This would be why your documents would state as Tim previously noted:

The cost of maintaining, repairing and maintaining the common area tracts and improvements located thereon, including but not limited to, signs, lights, perimeter and any interior fences constructed by Declarant, plantings and landscaping on common areas or on easements (if not maintained by applicable governmental jurisdictions);

If the easement is not maintained by applicable government jurisdiction, then per your document info stated above it appears to be common expense.

Change "additional" to "initial"

How do you go about finding a great attorney for such an argument and about how much should the association expect to pay for the legal opinion.

I am the president

Just trying to get all the info i can before i lead my board toward whatever they decide to do, however i think being informed is the best route that is why i am leaning toward counsel.

has anyone ever been through a lawsuit!

How expensive is it!

Just like you find a mechanic for your vehicle.

You start by asking friends, family, etc. for recommendations. If the Association already has an attorney, you ask if they have a department specializing in property/real estate law. You contact the local bar association for a list of attorneys. If all else fails, you open the phone book and start calling around asking if they specialize in that area.

Legal costs are based on how much time the law office has to spend to give you an answer (pulling records, doing research, etc.). A new attorney might charge a lower hourly rate but take more time to do the research. An experienced attorney might charge a higher hourly rate but have that knowledge based on experience (or know where to look for the answer) and therefore, could spend less time to give you a response. No matter what attorney you choose, you should get one that specializes in that area - as this will minimize the time they spend to give you an answer (and thereby providing the most bang for the buck). This is why I advised getting someone versed in property law vs. someone versed in corporate or criminal law.

In my area, I would expect to pay $150 to $300 for such an opinion. Your area might be higher or lower.

Yep. That is correct.

Tye asked "and how much should the association expect to pay for the legal opinion"

I was answering his question on what a legal opinion might cost.

The cost of actual litigation, as Janet posted, could cost thousands or tens of thousands.

In a previous life I was involved in a whole bunch of intertwined lawsuits. I represented myself, so I cannot speak about lawyers' fees, except that the opposing party once claimed that they had spent over $150,000. My lawsuits went on for a total of five years and involved the trial court, two divisions of the court of appeals, the state supreme court, and even a rather futile appeal to the US Supreme Court.

The expenses you will encounter are not just the lawyers' fees, which seem to run around $250 an hour for a small firm and at least double that for a high-profile firm. You will pay fees to file the lawsuit and another fee to serve it on the defendant. Your attorney will have an investigator to collect evidence and you will pay about $100 an hour for him, plus his expenses.

Prior to going to trial, your attorney and/or the defendant's attorney may take depositions from witnesses. These are very expensive as you will be paying for your attorney's time, a court reporter's services, and fees to the witnesses. If either party wants a hardcopy of the reporter's notes, you will probably have to pay somewhere in the range of $5 per page.

Your attorney may want to bring in an expert witness. That's more money out of your pocket. My best guess is that the least expensive expert witness is going to cost a minimum of $3000 with no upper limit. If the expert is from out-of-town, you will be stuck paying his transportation and other travel expenses.

If your case can be heard by a jury and either side requests one, you will be on the hook for jury fees. Even though jurors are paid little more than bus fare, multiply that fee times the number of jurors times the number of days and it gets expensive.

You may have language in your declaration that the losing party pays the winners fees. There is no guarantee that the court will do so. Judges usually have a great deal of discretion in awarding fees and are often reluctant to bury the underdog in costs where there is a genuine dispute. If either party appeals, both sides will incur more filing fees and attorney fees.

As you can see, a lawsuit can be very expensive. My advice is to ask your attorney for a written opinion about the issue. By written opinion, I mean a well-researched document referencing statutes and common law (published court opinions). Expect to pay through the nose for this, but it will be worth it. Share this opinion with the opposing party and let him decide whether he wishes to go to court.

Do not accept an attorney's verbal assurances. Lawyers have big egos and they love to think that they are experts in every facet of the law. Before I ever consult an attorney I do as much research as I can on the subject beforehand. I have lost count of the lawyers who lean back in their chairs and pontificate incorrectly on matters of law that they last encountered in law school 20 years ago in a different state.

I hope this helps you.

Tye,

Some of the posts here (including mine) interpret your documents as requiring the association to fix the fence.

More recent posts are indicating that not fixing the fence could cost significantly more than the cost of fixing the fence. What would fixing the fence cost? A couple thousand dollars perhaps?

Avoid the hassle, cost, wasted time worrying about what to do, etc.

Just fix the fence.