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WendyP
(Idaho)

Posts:1

08/06/2008 5:40 PM
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?

GeorgerwilliamsW
(Indiana)

Posts:768

08/06/2008 11:19 PM
Posted By WendyP on 08/06/2008 5:40 PM 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? Wendy, This is one of those great questions that may not have an easy answer. Even though there may be a legal answer, it needs to be approached in a common sense, non legalistic way, perhaps with compromise and proportionality. If the pipe is owned by the association, then the homeowners association is responsible for damage repairs, to the homes, the deck and the fence. That is what insurance is for. That is the right thing to do. The question that you should ask is, "Would the damage to the structures have been caused regardless of the encroachment?" If the answer is affirmative, then gladly repair. If not, then it is time for some negotiation. However, this is the time to correct the encroachment. The fence and deck should most likely not be rebuilt on common area. I say most likely because there may be some circumstances in which it may be more appropriate or sensible to reconstruct as it was. If it is an encroachment of just 6 inches or so it may not be worth fighting about. In making the decision ask, (1) What is the expense involved? (2) Is it worth a battle that may need to go to court, that may cost lots of money for legal fees, and that will negatively impact neighborly relationships. In such a case, the association may require the homeowner to legally acknowledge the encroachment as a limited, exceptional use to common area. Be reasonable, sensible, proportional, and neighborly.

SusanW1
(Michigan)

Posts:2316

08/07/2008 5:40 AM
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.

BradP
(Kansas)

Posts:1742

08/07/2008 6:33 AM
Wendy: Here are my two cents...Since the HOA clearly owns the line, then any damage caused by it is the responsibility of HOA. The fence and deck I am unclear of, if they were on the homeowners property then yes the HOA should replace it...if they were on common ground it gets tricky because it appears the HOA never questioned it.

MaryA1
(Arizona)

Posts:2498

08/07/2008 2:18 PM
Posted By WendyP on 08/06/2008 5:40 PM 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? 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?

KirkW1
(Texas)

Posts:1190

08/07/2008 5:58 PM
Here is my take: Regardless of who pays for the fence and deck, if they go back to the same location, you may as well deed over that portion of the common areas. You will in fact lose a later court case should you try and reclaim it since you have abandoned said property. As for who should pay for repair, if damage was done that was not the fault of the fence, then the HOA should pay for that (and only that). But they should not pay for the fence or deck because if they had been properly located they wouldn't have been affected. I fail to see why the HOA should pay to repair what they should have demanded be removed. And if you pay for it, then others will ignore the rules as well.

SusanW1
(Michigan)

Posts:2316

08/07/2008 6:12 PM
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.

DonnaS
(Tennessee)

Posts:2948

08/07/2008 6:52 PM
susan and Kirk, Wouldn't you think that this common area also would have an easement for access to the pipe? If that were the case, structures should not be built in that area. Then rebuilding the fence and deck would be a non issue

DonnaS
(Tennessee)

Posts:2948

08/07/2008 6:54 PM
Sorry Susan corrected the-susan- no cap.)

MaryA1
(Arizona)

Posts:2498

08/08/2008 7:09 AM
Posted By KirkW1 on 08/07/2008 5:58 PM Here is my take: Regardless of who pays for the fence and deck, if they go back to the same location, you may as well deed over that portion of the common areas. You will in fact lose a later court case should you try and reclaim it since you have abandoned said property. As for who should pay for repair, if damage was done that was not the fault of the fence, then the HOA should pay for that (and only that). But they should not pay for the fence or deck because if they had been properly located they wouldn't have been affected. I fail to see why the HOA should pay to repair what they should have demanded be removed. And if you pay for it, then others will ignore the rules as well. Kirk, Disregarding the water line that runs under the fence and deck, I must disagree with your statement: "I fail to see why the HOA should pay to repair what they should have demanded be removed. And if you pay for it, then others will ignore the rules as well." The reason the assn should pay is because they allowed the fence and deck to remain, thus making these structure OK. A number of years have gone by since these structures were built. Why should the h/o pay to have something rebuilt that was destroyed by the assn? I think the assn needs rebuild the fence and deck, perhaps in a different location, but in such a way that allows access to the water line. There are usually building restrictions on utility easements. The fact that the HOA did nothing about the fence being built over the water line, and on common area to boot, means they created the problem and they must now pay for doing so.

MicheleD
(Kentucky)

Posts:1866

08/08/2008 8:14 AM
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.

GeorgerwilliamsW
(Indiana)

Posts:768

08/08/2008 8:33 AM
Whatever happened to neighborliness? It seems that legalisms have replaced the notion of simply doing the right, fair, and just thing. This may not be a black and white issue, folks. We simply don't have enough information to support the opinions posted here. Let's be reasonable.

MicheleD
(Kentucky)

Posts:1866

08/08/2008 9:09 AM
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.

DonnaS
(Tennessee)

Posts:2948

08/08/2008 9:13 AM
And ignorance of the rules and lot line does not make for a good arguement. You know that you belong to a HOA, there are rules that everone either knows or has a copy of so that should have been what the policy was both for the owner and the past Board.

GeorgerwilliamsW
(Indiana)

Posts:768

08/08/2008 9:25 AM
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 . . .]

MicheleD
(Kentucky)

Posts:1866

08/08/2008 9:37 AM
George, I dunno, but I think this query alone could lead one to suspect that the HOA doesn't want to spend the money: "Since the pipe was within the fenced-in area, is the HOA responsible? " In other words, I read this as "if we don't HAVE to, why should we?" It's nothing to be ashamed of. I would want my HOA not to want to spend money unless it had to. And I forgive your sense of humor, after all, you are a Hoosier! ;D

KirkW1
(Texas)

Posts:1190

08/08/2008 6:14 PM
Whatever happened to neighborliness? It seems that legalisms have replaced the notion of simply doing the right, fair, and just thing. ... 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.)

GeorgerwilliamsW
(Indiana)

Posts:768

08/09/2008 12:41 AM
I am 100 percent with you, Kirk. But isn't that just what I proposed at the beginning? By the way, here is what one set of covenants says: Section 6. Easement for Unintentional Encroachment. Notwithstanding any other provisions contained herein, in the event that any Home or any improvement to any Home encroaches upon any part of the Common Area, as a result of construction, reconstruction, repair, shifting, settlement or movement of any part of the Property, then a perpetual easement appurtenant to such encroaching Home shall exist for the continuance of any such encroachment on the Common Area. Now that the fence had to be removed and replaced, it may be time to repair the encroachment issue as well, which is what I suggested to begin with.

MaryA1
(Arizona)

Posts:2498

08/09/2008 6:27 AM
Posted By GeorgerwilliamsW on 08/09/2008 12:41 AM I am 100 percent with you, Kirk. But isn't that just what I proposed at the beginning? By the way, here is what one set of covenants says: Section 6. Easement for Unintentional Encroachment. Notwithstanding any other provisions contained herein, in the event that any Home or any improvement to any Home encroaches upon any part of the Common Area, as a result of construction, reconstruction, repair, shifting, settlement or movement of any part of the Property, then a perpetual easement appurtenant to such encroaching Home shall exist for the continuance of any such encroachment on the Common Area. Now that the fence had to be removed and replaced, it may be time to repair the encroachment issue as well, which is what I suggested to begin with. George & Kirk, Aside from the fact that we're all making a lot of assumptions, I don't believe the HOA should be let off the hook by not being required to replace something they damaged/destroyed. Wendy doesn't know if the fence and deck were approved by the HOA or not. Since they were located on common area, perhaps the property owner should be asked to show proof that they were approved. If the property owner cannot, then the assn can deny reconstruction of same, unless it can be undertaken on the property owner's own property. If it can, then the assn is responsibile for the reconstruction. This should be a wake-up call for the HOA board to ensure proper records are kept for all A/C requests and to, more importantly, make certain that approvals do not allow encroachment on common areas. Also accurate records of all easements, utility and otherwise, should also be maintained.

MicheleD
(Kentucky)

Posts:1866

08/09/2008 11:06 AM
Reminder: The deck was never stated as having encroached on the common area. On the fence has the question of encroachment. The deck may or may not have been over top of the same pipe, and it was ruined/destroyed in either the flooding or clean up.

BradP
(Kansas)

Posts:1742

08/09/2008 1:33 PM
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

MicheleD
(Kentucky)

Posts:1866

08/09/2008 8:51 PM
I respectfully disagree with your item #3. We asked a homeowner to remove her fence that encroached on the Common Area. We didn't have to ask, but we did. Had she not removed it, which she ultimately did, we would have been able to dismantle the part that was on the common area. In addition, there are people in our subdivision who build fences that straddle the ditches in the rear of their yards. We cannot disallow them doing so, since it's their yard. However, since the area on which they are placing their fences is on the Metropolitan Sewer District's easement, we require they get a statement from MSD that they are aware that if MSD has to do "ditch" work and in the process has to tear down the fence that has straddled the ditch, that they (MSD)is not responsible for the damage, the homeowner is. We do this to make sure they are aware that neither the HOA nor MSD is responsible for damage if they build on the easement. MSD does not "prohibit" them from doing so, but the homeowner needs to be aware of the potential consequences if they do.

MaryA1
(Arizona)

Posts:2498

08/10/2008 10:00 AM
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.

BradP
(Kansas)

Posts:1742

08/10/2008 10:35 AM
Michele: Huge difference between dismantling and destroying....

MicheleD
(Kentucky)

Posts:1866

08/10/2008 10:41 AM
poh-TAY-toe poh-TAH-toe Depending on if you are the Homeowner or the HOA. . .

MicheleD
(Kentucky)

Posts:1866

08/10/2008 10:42 AM
PS: I've seen what our Metropolitan Sewer District calls "dismantling." It's a poster child for "destroying." Trust me, they are not gentle and there is no way one can use the same materials to rebuild when they are gone.

BradP
(Kansas)

Posts:1742

08/10/2008 12:08 PM
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.

MicheleD
(Kentucky)

Posts:1866

08/10/2008 12:19 PM
I realize what you said, and I respectfully disagreed with you. We have never had to remove a fence, though we came within inches of doing it (the homeowner finally realized we were not bluffing and so removed the fence herself). But I have seen our community's Metropolitan Sewer District tear down fences, some wooden privacy fences, some chain link, which were just dug up and pretty much "wadded up" and tossed aside, when they needed to do ditch work after homeowners had built onto the easements that they were not supposed to but did anyway. We're waiting for what's going to happen with 2 pools in our area when and if MSD ever has to do ditch work around them. Both have put their retention walls for the pools right into the walls of the ditches. One pool has a portion of it's side wall actually in the ditch with a retention wall holding it up. I have a feeling this could get ugly and I, for one, can't imagine what sort of knucklehead thinks there won't be consequences for something like that at some point. A potentially expensive roll of the dice, if you ask me.

KirkW1
(Texas)

Posts:1190

08/10/2008 9:17 PM
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.

MicheleD
(Kentucky)

Posts:1866

08/10/2008 9:53 PM
Again, these pools aren't "close," their retaining walls are in the ditch. One of the pools has it's sidewall in the slope of the ditch. With what in-ground pools cost, I wouldn't want to risk the potential damage, even if MSD dismantles it "gently." And the fences that we've seen destroyed were straddling the ditches, not simply "abutting" them. I doubt the PR will be bad for MSD. Everyone knows (at least around here) that you are taking a risk building on the ditches and into the MSD easements. One other thing about our particular neighborhood, which again makes the drainage ditches a risky proposition to build in, on, near or abutting: much of our neighborhood is in a 100-year flood plain. But the thing that gets me is why? Why would someone build anything, fence, pool, shed, what have you, in an area that they know they run the risk of having that something torn down, without any compensation back to them for it? It's not like they don't know about it. Even though MSD doesn't have any approval or denial procedure, you do have to sign a paper that you acknowledge the project is in their easement and that you, the homeowners, are responsible for any damage to whatever is being built there.

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