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Subject: HOA common element?

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SureshD

Posts:0

03/09/2010 4:24 AM
I'll keep this short then wait for(any)questions. We are a 98 home HOA within a city limit in Palm Beach Co. Fla. A protion of our property has a 1300 ft. long wood fence along one of the common area property lines to separate us from the next community which is a county pocket. The other 2 surrounding property lines have fences from the other two bordering communities which were erected prior to our development construction. The fence was erected at the time of development by the developer not the HOA. I have a copy of the city permit and final inspection report indicating such as well as the site plan showing its location. The fence was damaged by the '05-'06 hurricanes and has now further degraded over the last 5 years. Sections missing, leaning into a hedge also owned by our HOA. The BOD has decided not to repair or replace it by a 2 to 1 vote (2 other BOD members absent) saying the ficus hedge which is collocated on the HOA side of the fence (i.e. HOA hedge) is sufficient. It is patchy and damaged by recent white fly infestation and does not provide complete obstruction of view (privacy) let alone prevent trespassing. My questions: 1-Is this considered a common element such as a pool, basketball court, etc? 2-Possible city code requirements aside, if #1 is yes -does it require membership vote to remove? Any help is appreciated "Sam".

SusanW1
(Michigan)

Posts:5035

03/09/2010 6:08 AM
By "this" - do you mean the fence? The property is the common element, the fence is a structure on the property.

SureshD

Posts:0

03/09/2010 6:25 AM
Yes, "this" is the fence. Sorry. My question is can it be removed by just BOD. It seems like people would expect it to remain like a pool or other element. This BOD has already removed a small playground because the surrounding community kids were using it.

DonnaS
(Tennessee)

Posts:5671

03/09/2010 6:42 AM
Sam, YES and YES. It is common property (belongs to the HOA) and yes it needs a vote as it was a part of the common elements. Your documents should be requireing the HOA to maintain and replace it but the membership should be able to change the documents to allow for it's removal. Who the heck planted the Ficus? If you take the fence down, get those buggers removed as well. Replace with a native, Florida frendly plant.

SureshD

Posts:0

03/09/2010 7:10 AM
Well thank you. I am only an ARC comm. member not BOD. I am not in favor of its removal as I am on that border along with only 25 other homes. Many of those 25 have their own fence. It is the arrogance of BOD members not along that side that don't want to pay for it as they don't benefit and may cost $10+/ft. Sorry to be repetitive are you sure it requires membership to stop? How come a Fla. LCAM would not know that? (I know you don't know him). Thus, I was surprised to see it even motioned given my thoughts of it being up to the members. This could still happen due to the numbers 25 vs. 73 at best. Just trying to see how to make them understand. Does 720 address this? Ficus not going anywhere again, $$$.

DonnaS
(Tennessee)

Posts:5671

03/09/2010 9:20 AM
Sam, NO, 720 does not address this, only your own CC&Rs. Because it is a common element, otherwise could be known as an amenity at purchase, it takes the owners to remove it. . As for your Fl. Cam, some do not know which way is up, not all but some. If I am rading you correctly, some have installed their own fences to replace the old one. Maybe that is what you might have to do. But the main point here is that the Association should be responsible for it and until a vote is passed otherwise, they need to fix it.

SureshD

Posts:0

03/09/2010 9:38 AM
Thank You DonnaS. The fence in question is on common property. Those that have personal fences are on their rear (and side) lot property lines which is separated by a 20 ft. landscaping buffer from the fence in question. The grass, trees, irrigation and ficus hedge between the two fences (if a private one exists) is maintained by the HOA. Thanks again. I like the ammenity at purchase (or similar) term you used. I'll be sure to put it to use. Sam D.

DonnaS
(Tennessee)

Posts:5671

03/09/2010 10:05 AM
Sam, One of my HOAs had 4 tennis courts as common property. They had to be resurfaced at a whopping $40,000. There were about 10 people who used the courts. It went to a vote to remove them because of the huge cost. Because it was an amenity at purchase, the vote needed to carry for removal was 100%. Guess what> The courts are still there and every few years, the reserve fund for them gets wiped out because of the now 8 members who use them.

SureshD

Posts:0

03/09/2010 10:15 AM
I reviewed my CC&Rs awhile ago and don't recall seeing such an entry. What should I look for? Affraid to ask...What if is not mentioned?

SureshD

Posts:0

03/09/2010 10:17 AM
By "it" I mean such language about amenity at purchase. I like the 100% approval thing but I'm skeptical about any mention.

MaryA1

Posts:0

03/09/2010 10:40 AM
SureshD, I don't know that I would consider a perimeter fence an amenity. In my CCRs, it would be a part of the common areas which are maintained by the BOD with no vote of the membership required. I would in your CCRs for articles that address "common areas", perhaps under "Maintenance" and also for an article addressing "Changes in Use". Again, in my CCRs a change in use of assn land does not require a vote of the membership but it does require approval by the A/C. Regarding the fence, if the BOD feels it isn't necessary then they should have it removed; otherwise it should be repaired ASAP. I can't imagine why they are dragging their feet on this, it sounds like a real eyesore to me.

SureshD

Posts:0

03/09/2010 11:16 AM
At the time of development, this was the only separation between the community and the neighboring Trailer Park and the only stretch of non-fenced perimiter. All other perimiter areas have fences from the prior developed communities. This community has only one entrance and exit with automated vehicle gates so without this section of fence security is severly reduced. So it is as much for security as privacy. I have to believe purchase decisions were made based on its presence. I'm sure that's why the developer spent $12K for it. So the description of amenity seems plausible. I don't expect responsible actions form the BOD. That's why the fence has continued to deteriorate over the last 5 years. Apathy is rampant. Money is always the excuse.

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