fence encroaching on common area

Years ago, a fence encroaching on our common area was built by a homeowner. (It is not clear whether the Board at the time approved the fence or whether they did not challenge the homeowner.) That fence was built over the main sprinkler line for that section of the property. Earlier this summer, that line burst, sending a lot of water into the crawl space of that home plus the two neighboring units. The fence (and deck within the fence) were demolished so that the pipe could be repaired. The homeowner is requesting that the HOA pay the bills for cleanup and for reconstruction of the fence and deck. Since the pipe was within the fenced-in area, is the HOA responsible?

Our subidvison has the same policy: subdivison-owned water line coming onto the property AND the water box main must be accessible for repair. If you build a structure over the water line, install a driveway over it, or even plant a garden over these pipes and the main, you take a risk.

Your HOA should provide every HO a map showing the water line on their property so the HO will not restrict access.

I'm a little confused by your post. If the homeowner is intruding on the common area, the fence and deck should not be there, period - water line or not.

A survey will put the matter to rest.

Wendy,

I would say, yes, the HOA is resp. for repair/replacement of the fence and deck. Since the damage was caused by the HOA, it should be repaired by the HOA. The fact that the fence and deck are on a common area and construction may or may not have been approved is a moot point. The main point is that the HOA caused damage and they are liable to pay for it.

Surely, after all the years that have lapsed, the board is not now going to say the fence and deck are not allowed?

Isn't there anything in your bylaws that states all water lines need to be accessible for repairs, etc. and that residents should not place items on them?

In our sub, if your driveway has covered access to the subdivision's water main, your driveway comes up!! Gardens and rocks have been moved because of this.

Sorry Susan corrected the-susan- no cap.)

I must humbly remind everyone that the original poster is unclear as to the knowledge the board at the time the fence was built had about the encroachment.

This may have been something that was not noticed until the the pipe issue.

The original poster hasn't claimed the deck was encroaching, only the fence.

The deck probably should be replaced or repaired by the HOA, but the fence is another issue altogether.

Since it's unclear whether the previous board knew of the encroachment, I don't think the HOA has lost its ability to deny the rebuilding of it.

They may not have known then, or at least it can't be proven they knew, but they do know now and are well within their rights to deny responsibility for the portion that was encroaching into the common area.

We were not aware of a homeowner's fence encroachment until almost 2 years after it was built.

The fence was approved based on the homeowner's approval form, which indicated that a survey WAS done, when, in fact, it had not been. The homeowner signed the document, so she knew at the time she signed it that she had not had the survey done.

When we had a survey done a couple years later in conjunction with a different issue, it was discovered that her fence encroached 8 feet into the common area.

Since hers was the only fence in that stretch of lots, and the common area extends quite a bit behind all of them, there is no way to tell by looking that the fence was built out too far.

She has since removed the entire fence (after almost 2 years of run around and having to file a lawsuit), even though we only requested that she remove the section on the common area.

However, technically, since the fence was not built according to the approval she received, the entire structure could have been deemed "unapproved" and we could have required the removal of the entire structure, anyway.

So, in my opinion, the HOA probably should replace the deck (baring any "easement" issues that might say they don't need to, like our Metropolitan Sewer District has with certain things, which is why we have B.U.D. (Call Before U Dig) so residents know where they can and can't place structures on their lots).

But, in my opinion, the H/O is on her own with the fence and this time should be held to not encroaching on the common area if and when she rebuilds it.

Neighborliness ends where people's pocketbooks begin.

That's just a fact.

The homeowner doesn't want to spend the money to repair the damage.

The HOA doesn't want to spend the money to repair the damage.

Insurance will come into play, but so will deductibles and possibly increased insurance rates.

The fact is, if someone encroaches, there is a consequence for that.

Just because it wasn't noticed (allegedly) doesn't mean the homeowner gets a free pass.

My guess is the homeowner was aware, or at least should have been aware, more aware than the board, that the fence they were building was not completely on their property. But, admittedly, that is just a guess on my part. However, had the homeowner done a survey, he would have known for sure where the fence could have legally gone.

If the area the fence was on ended up being my property, as opposed to the HOA's, I don't think I would have been so "neighborly" if the neighbor was now asking me to repair the fence, were I to have had to tear it down to effect some repair on my property.

You are right, we do not know all the details, so much is speculation, and, as always, different jurisdictions and bylaws, CC&Rs, etc, have different legal responsibility issues.

But in my opinion, the "neighborliness" should have started with the homeowner who built the fence. A good neighbor does not build structures on land that doesn't belong to him.

Michele,

This is what I mean about unsupportable opinions. Where in the discussion did we learn this:

"The HOA doesn't want to spend the money to repair the damage. "

I can't find any reference to such knowledge, but please, please correct me if I am wrong.

And we have no notion of the significance of the encroachment is? An inch?? Ten feet?

I guess that north of the Ohio River we have different attitudes toward our neighbors. We are willing to help out, to lend a hand, to even sacrifice financially if that is the right thing to do. Maybe we are behind the times. Maybe we are more civilized than the rest of the country.

Maybe there is a reason that Hoosiers are always making jokes about our fine neighbors to the south. . .

"A tornado passed through Kentucky last Spring. It did $10 million worth of improvements.

http://www.hoosiergazette.com/archivejoke/page1.asp

[Now don't get mad, it's all in jest . . .]

I don't see it as being neighborly to expect others to repair something that would not have been damaged had it not been built where is wasn't supposed to.

So here is what I consider to be right and fair (not legal):

If the fence itself did not cause the water line problem and did not contribute to the flooding damage, then the HOA should pay for flooding damage.

If the fence did contribute, then the owner of the fence pays because it is a liability for putting a fence where it should not have been.

As for replacing the fence, if it would have been damaged anyway, then replace it placing the fence where it belongs and won't be in the way of future repairs to the line.

The deck is the same kind of situation. If the deck was unapproved and was where it should not have been, then it isn't covered.

What you have to do (in my opinion) is to take into account what would have happened if the fence and deck were not built in an unapproved location. You could also take into account if you would have approved it had the request been given. But a single person should not be able to burden the community with a responsibility to replace something that shouldn't have been built. Now if you would have otherwise approved both fence and deck where they were then you should perhaps replace them but not in the same location.

Regardless of who pays for replacement, neither should be on common property unless there is policy for allowing members to stake out a share of said common property. (I don't ahve a problem if for instance there all members are allowed to put a deck taking up a roughly equal amount of common property. Thus the commonness of said property seems relatively stable. (Hope that makes some sense.)

Here are my thoughts...

1) the homeowner should check their contract with the fence company, if the fence company was required by the contract to find the property lines and install it on their property I as the homeowner would be talking to them as well..

2) We don't know if the fence was destroyed by the flood or by the cleanup...if it was destroyed by the flood and wasn't the cause of the flood I think location of the fence is irrelevant and the HOA should pay...if it was damaged in the the cleanup then my question would be was there a way to dismantle the fence without destroying the materials so it could be put back up later?

3) If the fence encroached and was destroyed in the cleanup again location to me is irrelevant, the HOA doesn't have the right to destroy another's property even if it is on theirs, I think in this case the HOA should pay the materials and the homeowner should put back up themselves.

neighborliness will always take a back seat to pocketbooks, money makes people do really strange things

Brad & Michele,

With regard to Brad's #3: I think it all depends upon whether or not approval was granted by the BOD to build the fence. If approval was granted, the BOD should be required to rebuild but it should be rebuilt w/i the owner's property. If the property owner cannot show proof that the fence was approved, then the HOA has no obligation to rebuild, even on the owners' property.

poh-TAY-toe

poh-TAH-toe

Depending on if you are the Homeowner or the HOA. . .

Michele:

I don't understand why you have to be that way...a fence in most instances can be dismantled in such a way to save the materials to reassemble...But if the materials are destroyed then they need to buy new materials...It is a legit question and as I said if it is on common property doesn't mean it can be destroyed without repurcusion.

If the pool abuts but doesn't encroach the easement, then the MSD will end up paying for any damage they do to the pool. If the pool (or any part of its structure) does encroach, the MSD may actually file to recover their extra costs.

The thing is that an easement doesn't extend one inch beyond where it is stated to run. Yet often ditches in easements do in fact extend beyond the easement. And in those cases the land owner is totally within their rights to recover the land. If such recovery causes problems, it is the user of the easement who will end up paying the damage.

Most of the time easement owners want to maintain good public relations. They take the effort to be gentle and dismantle a fence in such a manner that it can be put back up when they are done. What the people who destroy stuff don't realize is that one day them may find that they work for a person who had their fence demolished. And suddenly they will get poor reviews. And eventually enough people will get upset that the elected people who oversee the MSD will lose an election.

Wendy you need to contact your HOA attorney and ask him/her these questions. The HOA is in all likelihood responsible for the flooding damages and the sooner it makes reparations the better either through the insurance or its own funds. The fence and the deck are another matter; if they are both build on the common area, then you defiantly need to get an attorney involved. While you don't specify the exact length of time that the fence and deck have been there, Idaho has a relatively short period of time where a person can claim Adverse Possession of the property.

In Idaho, the duration of such possession is five (5) years. The person claiming title by adverse possession must pay taxes and assessments on real estate during the time of adverse possession. The claimant must enclose the real estate, cultivate it, make improvements on it, or otherwise use it for its ordinary and actual purpose. Idaho Code §5-208 through 210.

Dwight it's from this website: http://www.houselist.com/forms/que/advposs.htm
I thought that I'd included the address in my original post.

It is one thing to be neighborly, but when it comes to conducting business of the HOA legalities are necessary. When an owner buys a townhome, condo, home, etc. in a covenanted development, the governing (recorded) documents - also known as Declaration, CCR's, etc. - are a binding contract with all owners.
If in the documents it states "no further division of the common elements", then that is exactly what it means. If the board gave permission or not, there should have been no further division of the property.
If the fence and deck were ruined because they were on the common area, the owner wanting the repairs needs to show proof of a deed for the land their fence and deck sat on. Unless the owner of the ruined deck and fence can provide a deed, that is just a risk they chose to take. The land still belongs to all the owners as a common area designated on the plat map.
So please don't be so friendly and quick to allow owners use of common areas, since the BOD has no authority to allow one owner to use the commone area without the approval of a revision of the CCR(declaration, covenants, etc.) by 60% (or as designated in the legal documents)of the home owners. All the home owners have to pay for any insurance on the common elements and who will take the hit for any premium increase??? Repair the pipes in the common area and talk to a lawyer about possibly holding the person responsible for damages to the pipes from the weight of the fence and deck that shouldn't have been on the common elements. They should also be held responsible for damage to the other homeowners damaged property.