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Subject: Easements and Fences
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Author Messages
HillaryM


Posts:0


08/13/2017 5:36 PM  
According to our plot map were were given at closing, We have a 20ft drainage easement next to our house that begins 3ft from the house, and a 10ft utility easement on the right side.our Lot is pieshaped and small. Our fence submittal was denied because HOA said easements cannot be enclosed. So we go to the county, who owns the swale, and they said we could encroach into the easement as long as drainage isnt obstructed and we were responsible for moving it if maint was to happen. AND there was no utility or drainage easement on the otherside like my plot plan says.. The plot map even says preliminary on it so that has to mean there is a master copy elsewhere? Can the hoa really say no dont build, or make me take it down or is the county above them since its technically their ditch and i have written permission saying we could build on it. The only thing in my handbook about the hoa owning an easement is "an easement over every property specifically for instances of delinquent ownership involving maintenance or mowing." It doesnt say where. Also other swales in the neighborhood have fences built on the actual slopes. Our plan leaves walking distance on flat ground. Is it smart to point out other fences in the neighborhood like "they did this, so why cant we" new to hoa and home ownership and i just want to fence my tiny .08 acre yard for my kids
JohnC46
(South Carolina)

Posts:7010


08/13/2017 5:53 PM  
The typical BOD answer about easements is you cannot run a fence over them. Well that answer is usually wrong. It is up to the utility holding the easement to decide, not the BOD.

Continue on the path you are on showing the BOD that the utility holding the easement has no problem with you erecting a fence. Now all you have to do is meet the associations guideline on type, style, height, etc of fences which they can control.
TimB4
(Virginia)

Posts:14861


08/13/2017 7:00 PM  
Who mows the swale?

You or the Association?
HillaryM


Posts:0


08/13/2017 7:10 PM  
Nobody, it is not mowable. Lots of bushes and plants and a few small baby pines. Both us neighbors just mow to the edge. He owns the most than we do, our property line is the edge on our side. Its more of a ditch in my opinion with steep sides. The county called it a stormwater swale. It collets rainswater that flows from the street, always has water in it so nobody really maintains it.

Thank u john, a little glimmer of hope the 2nd proposal isnt denied. We reduced the ditch side by 2 ft in a kind effort. 2ft doesnt sound like much but our lot is so small already and now we feel like we were naive and sorta duped thinking we had more space than we actually do.
HillaryM


Posts:0


09/02/2017 10:39 AM  
Update they denied again. How can i believe they are telling me the truth and now i have no rights to that land. When we purchased this house we were told by the builder that we have the rights to everything. The ditch is ours and neighbors responsibility for upkeep. Our counties Stormwater ordinance specifically says all ditches and swales and other drainage easements are the private lot owners responsibilty. The HOA management company says "you need to understand that the ditch does not belong to the county, it ULTIMATELY belongs to the HOA"
JanetB2
(Colorado)

Posts:3642


09/03/2017 6:10 PM  
LOL ... If easements could not be fenced most HOA's across the country would not have any fences at all. If the easement is on your property ... YOU still own that property. You can put anything you darn well please on that property as long as it does not violate anything contained in the "Easement Agreement" (Your local government should be able to provide a copy). Generally these will state no permanent buildings, trees, etc. However, they will also usually note fences and bushes are allowed, but if access is ever needed the owner is responsible for removing any "temporary type" obstructions they installed and replace at their own cost. I would do two things: 1) Make sure you are carefully tracking any correspondence with proof of receipt of your correspondence. I would send a letter "Cerrtified Return Receipt" with the info from the local government, pointing out other homes with fences located on swale easements, and request for them to give you the exact State Statute and governing document sections backing up their denial AND why you are being treated different that other similar owners. 2) I would attend the next local government council meeting and during the time when citizens can voice a concern ... I would pound them on the issue that your "Property Rights" are being violated. We did this once and they had us talk for few minutes with their attorney (was told as Citizens it was a concern for the attorney to review ... after all we pay property taxes). Sometimes a telephone call or email from the local government attorney can quickly settle a property issue. Not many governments do this, but mine did ... LOL also could have been due to the not nice publicity they were getting on our other issues and did not want it to further explode. 3) If the other two do not pan out then consult with an attorney. Unfortunately, sometimes it is difficult to fix stupid and it may take an attorney to make them see the light.
JanetB2
(Colorado)

Posts:3642


09/03/2017 6:19 PM  
Posted By HillaryM on 09/02/2017 10:39 AM
Update they denied again. How can i believe they are telling me the truth and now i have no rights to that land. When we purchased this house we were told by the builder that we have the rights to everything. The ditch is ours and neighbors responsibility for upkeep. Our counties Stormwater ordinance specifically says all ditches and swales and other drainage easements are the private lot owners responsibilty. The HOA management company says "you need to understand that the ditch does not belong to the county, it ULTIMATELY belongs to the HOA"


In that above noted "Certified Return Receipt" letter be sure to include a copy your Lot Plat ... And inform them you have supplied your legal plat showing YOU own the property; therefore, please supply the LEGAL PLAT showing where the property belongs to the HOA. YEP ... bet they cant do that ... LOL.
DaveD3
(Michigan)

Posts:770


09/03/2017 7:38 PM  
Posted By HillaryM on 09/02/2017 10:39 AM
Update they denied again. How can i believe they are telling me the truth and now i have no rights to that land. When we purchased this house we were told by the builder that we have the rights to everything. The ditch is ours and neighbors responsibility for upkeep. Our counties Stormwater ordinance specifically says all ditches and swales and other drainage easements are the private lot owners responsibilty. The HOA management company says "you need to understand that the ditch does not belong to the county, it ULTIMATELY belongs to the HOA"





It sounds like you're dealing with the typical, "uninformed, but sometimes well-intentioned" HOA board. Or they may be completely clueless without the good intentions.

Can you get a letter from the county reinforcing your assertion that YOU own the easement?
If not, I'd get such a letter from an attorney.

Heck, the plat map alone should show who owns the property.
HillaryM


Posts:0


09/03/2017 7:51 PM  
Thank you so much Janet for your advice. We have been told by the countys storm water advisor that if they give us any more problems that she will advocate for us and do what she can. I will also be contacting our real estate attorney to see what he thinks. Our map plot doesn't specify who owns the easement it's just a "type A drainage easement." Nobody needs to walk on it or use it so it's not a right of way for the public. The problem is if we can't extend our fence onto it then we lose valuable SQ ft in an already tiny yard. Ive been doing a lot of searching on the management company who runs the HOA and I'm dealing with an attorney who escaped 10 years of sexual assualt charges with a simple doctors note. They are sketchy people to say the least so I'm not taking anything they say seriously unless I see it in writing with the court. I will definitely ask about where it says fences cannot be errected on easements within our covenants and show me something legal that says HOA responsibility=ownership. Those words are not the same and "responsibility" came straight from the horses mouth. I don't think my neighbors want the "responsibility" of a flooded Swale and I sure haven't seen anyone tending to the over growth other than my husband.
HillaryM


Posts:0


09/03/2017 8:01 PM  
Yes our plot map shows that our neighbor owns most of the ditch and we just have a little sliver of it. The corner of their house is literally the beginning of the 20 ft easement. The corner of our house has 3ft until the easement begins. Like I said nobody maintains it other than us and by maintain I mean cut weeds and shrubs back. It is a huge ditch that holds water and has small trees\plants throughout. We will be contacting the county again after the holiday but I'm sure when she pulled it up the first time she would've told us you don't "own" it...? When we closed, the builder specifically said you own the rights to your land and referenced the Beverly hillbillies oil thing.
HillaryM


Posts:0


09/03/2017 8:05 PM  
This is their denial:

Regarding your fencing request, attached is a copy of the recorded easement map for your lot. There is an easement on the left side of the lot that a fence cannot enter. See attached Map. This request is denied as submitted.

I understand that this is not the answer you are hoping for, but please understand that the County is not responsible for drainage easements. The HOA is ultimately responsible. If you would like to adjust the placement and resubmit, please let me know
HillaryM


Posts:0


09/03/2017 8:09 PM  
Now that I think about it here is the first denial and all they wrote was the easement cannot be enclosed...not fences can not enter. 2 separate denial reasoning s in my opinion!

Thank you for your submittal. The standard fencing requirements is that drainage and utility easements not be enclosed. Could you resubmit under those terms?
JanetB2
(Colorado)

Posts:3642


09/03/2017 9:04 PM  
Again ... they need to show you where the CCR's do not allow. Both I and a few other neighbors have a 100' wide drainage easement running through our properties (also part of year round stream). But we still have fences between our homes. The drainage easements are meant for ground water after a rain to be able to seep towards those areas.

So here is a question ... why type of fence are you wanting to install? I potentially could see an issue if you are digging down to install a concrete block fence (as that could potentially divert ground water seepage), but most other fences (cedar, vinyl, etc.) are at least usually an inch above ground, so would not divert ground water seeping to a drainage area.

You might also get with your builder who stated you own the rights to your land. If you are still under development he might have some input or control regarding the situation.
HillaryM


Posts:0


09/03/2017 9:16 PM  
There are white vinyl, stockade, black iron, white iron, and shadowbox style fences in the neighborhood. We are copying 2 neighbors in regards to a wood fence all around except on the back, black iron so we can see the mini forest behind our property. The fence is a basic horizontal privacy, no gap with a vertical post every 5 ft. It doesn't seem like the type of fence is an issue with them because all she said was resubmit with a different placement. I assume they would've said no horizontal in the denial. There's so many different kinds of fences in the neighborhood that to deny that style would be singling us out.
JanetB2
(Colorado)

Posts:3642


09/03/2017 9:31 PM  
I would send the Certified letter asking for the specific section of your Documents they are basing their decision. Before that I would obtain a copy of the Easement Agreement to see exactly what it allows or does not allow (potentially if the entity overseeing did not see an issue and willing to asssist you) there should not be anything there denying you; however, there might be text referring to fences being allowed which in turn could help you.

You stated:

"It doesnt say where. Also other swales in the neighborhood have fences built on the actual slopes. Our plan leaves walking distance on flat ground. Is it smart to point out other fences in the neighborhood like "they did this, so why cant we" new to hoa and home ownership and i just want to fence my tiny .08 acre yard for my kids"

YEP I would bring up being treated differently IF they also have similar easements ... You can maybe go to your County Assessor website and pull up those lots and there might be a copy of their Plat maps to check out their easements. OR, just go to your County Records and get a large Final Plat for your subdivision. My County charged me $20 bucks for the large copy of mine (need the full large plat or you might not be able to read the small fine print). It will show all the lots and easements. It comes in handy when HOA stuff comes up to be able to refer to the map for any issues. I have not only used it for my lot, but also for other HOA issues.
JanetB2
(Colorado)

Posts:3642


09/03/2017 9:42 PM  
Sorry ... actually was $10 per large copy. I pulled a Final Plat plus copies of two other large plats and it cost me $30. However, keep in mind different Counties charge different prices. Some still allow viewing, copying, and saving documents without charging fees via their websites. If you go to your County Records website and put in the name of your association it should list all documents. Then check to see if you can view without any fee. If you can just save the files to a pen drive then take to a copy place and they might be able to print for less than you would pay at the County.
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