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Subject:  illegal double fence
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JamesS31
(Colorado)

Posts:6


08/17/2012 10:06 AM  
Does anyone know how to quantify, in dollar damages, the effect of a neighbor installing a fence against another already existing fence? Different type of fence. It has wire on it to contain dogs. Fence was put up in violation of HOA covenants. We have a small 9 home HOA and with a 90% turnover of owners in last 3 years. The new owners do not want any enforcement and are all violators of not following the architectural covenants and want to do a "one time retroactive approval" of their violations saying this will not affect enforceability going forward.

I can find nothing on any court dealing with a retroactive approval-i.e. you pat my back and I'll pat yours and all will be well.

Real Estate appraisers can find no data to be able to prove any diminution in value from an ugly double fence that creates weed issues between the two fences. Driving around the area I can find no double fences in upper scale home areas. Some have none and others require them(single fence) but of the same style.

This ugly double fence situation with the tall weeds would surely detract from value but how can it be quantified? Just ask a judge to take judicial notice and fashion a dollar figure?

Any help would be appreciated as I am having to do the enforcing here.
TimB4
(Virginia)

Posts:16306


08/17/2012 10:16 AM  
I don't know how you could quantify damages as it's an aesthetic issue and aesthetic is typically a personal judgement thing. You could spray the area with weed killer which may help the aesthetic value.

If the fence is in violation of the CC&Rs (vs. the guidelines) you could bring legal action to enforce the CC&Rs. If the fence (materials, etc.) is in violation of the guidelines, this can be a harder issue as the guidelines are not necessarily a hard fast rule - they are what the name implies, guidelines. Guidelines are used as a standardization for the approving authority to aid in making the decision to approve or disapprove a request for the fence.

If your considering legal action, consult with an attorney.



JamesS31
(Colorado)

Posts:6


08/17/2012 11:31 AM  
Board and officers are all violators and want a "one time retro approval process" to bless all their past violations. What they want (small 9 home hoa)is no restrictions on anything-all new owners in last 3 years except us-my how times can change an hoa! I took them to court but screwy judge said claim was not ripe since she thought retro approval would be ok since such a process "was not specifically prohibited" in the covenants. Well, covenants say you must get written approval and send out notices of violations and maybe deal with a variance process on an individual basis. Can find absolutely no case law or discussion anywhere that retro approval is a valid process-not even a subject of discussion.
TimB4
(Virginia)

Posts:16306


08/17/2012 12:48 PM  
Posted By JamesS31 on 08/17/2012 11:31 AM
discussion anywhere that retro approval is a valid process-not even a subject of discussion.




Actually, seeking approval after the fact is advised all the time on this forum.

It depends on the wording in the covenants.

Example: if the covenants say no sheds. Then the Association may not approve sheds until the covenants are changed. However, if the covenants say no sheds without approval, then sheds are allowed if approval if received.

As many on this forum has advised others, IF the issue is the lack of getting approval, then all that has to happen is the member submits a request to the approving authority. If the approving authority approves it, then the issue is resolved. If the approving authority denies it, then the member needs to remove what they put in place.
This may be why the judge ruled the way he did.


JamesS31
(Colorado)

Posts:6


08/17/2012 1:42 PM  
Well when you have all the officers and a majority of the board members, who were aware of the violations and had a duty to at least send out notices of violations, I think it is a little different than what you contemplate. They did nothing and only were going to do an after the fact wink wink you approve my improvements and I will approve yours. If this after the fact mass approval is the way to do things then 1)"prior written approval.." language would have no meaning; 2) it would be an unfair burden for those opposing the improvement-oh well its up now, does not look so bad or a waste of resources to have it taken down..in short gives an advantage to the homeowner who did not follow the rules. In a small hoa where the foxes are in charge of the chicken coop it is a death knell to enforcement of anything going forward.

In my HOA talk of a "one time retro approval process" was not even contemplated until I threatened a lawsuit. In fact the statute of limitations has run on most violations. One would think if such a process was advised and commonplace there would be cases or commentary on this. I have found none. I am talking mass disregard for covenant restrictions, not a one time homeowner who was unaware of his/her duty to apply for approval.
LarryB13
(Arizona)

Posts:4099


08/17/2012 2:07 PM  
In the title to this thread you refer to it as an "illegal double fence." If it is against the law, call the cops and have the offending owner hauled off to jail. Of course, if the cops don't make an arrest you can sue them, too, for diminishing the value of your property.

Or you could just grow up.
JamesS31
(Colorado)

Posts:6


08/17/2012 2:40 PM  
LarryB:

Perhaps a poor choice of words, I should have said unapproved double fence but I thought I communicated the idea properly. Certainly not deserving of your insults.

HOA's primary purpose is to protect property values. That is done through covenants that prevent as one book on the subject said, so that your neighbor does not put up a Hanzel and Gretel house next to you. If you do not want restrictions do not buy in an HOA development.

I thought I was being the grown up by following the rules. Unfortunately in Colorado there is no enforcement mechanism other than bringing a lawsuit.

By the way Larry, do you have a double fence next to you?
KevinK7
(Florida)

Posts:1342


08/17/2012 2:59 PM  
9 small homes?

Out of curiosity, what is the structure of the HOA? How big is the board? Are you on the board?

It sounds to me that this tiny neighborhood really doesn't want a HOA, or at least some of these covenants.

As for the double fence, I would suggest weedkiller for the time being but before the second fence was erected, did the owner communicate with anyone, such as their neighbors (you?) about putting up a fence?

I had a neighbor who wanted to do a fence when we already had a fence. We worked out an arrangement to where they continued from where ours left off. All was well.
MelissaP1
(Alabama)

Posts:8087


08/17/2012 4:15 PM  
A HOA's purpose is NOT to improve or maintain property values. That is a misnomer. It's purpose is to maintain ATTRACTIVENESS to potential buyers.A nice looking place is more attractive to buyers than unattractive not uniformed property. Certain amenities like pools, tennis courts, and recreational areas are also tools for attracting buyers.

HOA's were created by developers and builders as sales tools. What is more useful tool to selling or buying property if you know there are restrictions in place to enforce rules of keeping the place maintained? Providing HOA rules/deed restrictions give the power to the owners to run things amongst themselves. Plus once the developer has left, they no longer are responsible for the most expensive part of a HOA...Providing maintenance and repairs to property and/or amenities. The owners are.

So in saying this, it is the opinion of you and your neighbors on what they feel is acceptable. They then have the choice to enforced it if it's in the rules. An ugly fence does NOT effect anyone's property values. It means people may not be attracted to the home to want to purchase it.

Former HOA President
JohnC46
(South Carolina)

Posts:8273


08/18/2012 5:56 AM  
James

You said earlier:

I took them to court but screwy judge said claim was not ripe since she thought retro approval would be ok since such a process "was not specifically prohibited" in the covenants.

You are not going to get anywhere arguing with the other association members. Your alternative is hire an attorney and go after it again legally, but this time be prepared.

Hope this helps.


JohnB26


Posts:0


08/18/2012 7:37 AM  
noooo ......... the REAL purpose of the assoc. is to maintain the FEDERALLY MANDATED stormwater retention / discharge system ........ called a 'lake' by the developer ....... just wait 20 years and see what the dredging / disposal will cost the assoc !!!!!!!
JamesS31
(Colorado)

Posts:6


08/18/2012 11:08 AM  
I was the first president of the HOA. All 8 other neighbors are second generation owners and do not appear to want to follow covenants. Current treasurer had major unapproved landscaping done the day after a board meeting discussing such actions.

I simply have the neighbor from hell next to me. Too long of a story but broke all the rules and became angry when confronted with same. Another neighbor remarked that "every homeowner should be able to do what they want on their property". This is what I am dealing with and do not like the status of being the only lawman in town but it is what it is.

As to the purpose of an HOA here are some quotes from some books on the subject:

1) BE REASONABLE by Kenneth Budd...."reasonable restrictions, consistently enforced over time, preserve property values and maintain a high quality of life for residents".

2) THE HOMEOWNERS ASSOCIATION MANUAL by Peter Dunbar..." Properly run, it(the hoa)promotes the community concept and protects the community's property values."

There are other books with similar statements and I suppose everyone has their own opinion but bottom line is HOA's have rules that need to be followed. When you have a small HOA wherein a majority decide not to follow the rules it creates chaos.

A double fence does affect attractiveness which in turn affects property values. Same as a junk car in your backyard. Maybe not all potential purchasers are put off but enough to affect value-just hard to quantify in exact dollars.

An HOA that has surrendered its right to enforce its covenants also affects property values. I have been involved in HOA's for 20 years but not one this small. I will never buy into one again as there are too many buying into them with no intent to conform to the restrictions inherent in an HOA.

My original posting was not meant to be the basis for a general discussion but to see if others had a similar unapproved double fence issue at their HOA and how it got handled. As well as a retroactive approval process which from what I can or cannot find in any legal publication is a complete fiction. "Prior approval in writing" does not contemplate after the fact approval but enforcement of violations of unapproved structures.

I was told by one respected real property law firm to just install my own privacy fence and paint the "finger solution" in bright orange on the neighbor's side. Lawsuits are expensive and that may turn out to be the best solution. Although as they say for those who would seek revenge-dig two graves.
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