New Member - Confusing Violation Correction

Over the last month I have been thrown into the middle of a massive problem with our HOA. We are a 33 home single family housing community. Here's what happened.

In November of 2008 a resident sought approval from the HOA (which was then controlled by the developer) and local township to construct a fence on his property. Both requests were approved.

In December of 2008 the township received a complaint that the fence was built in an improper location. Upon investigation, the township determined the fence was in fact misrepresented on the permit application and issued a warning. Behind this resident's property line is a 20' wide area of greenspace to serve as a buffer between the subdivision and an adjacent property. Instead of running the fence across the back of his property line, the resident simply extended his fence all the way back to the edge of the subdivision (thereby claiming a substantial area of greenspace as his own backyard). There is a 42' section of fencing erected on HOA property. After refusing to respond to the township's warning, the township then issued a citation. Still the portion of fence in violation was not removed.

The township then filed a lawsuit in March 2009 against the HOA (which at that time was still controlled by the developer) as the fence was constructed on HOA property (regardless of who built the fence). Conveniently, the developer transferred control of the HOA to the residents in April 2009. In my opinion, the developer was trying to sweep everything under the rug. Unfortunately, the resident in the center of all this became the HOA president and thusly filtered the flow of information to the community (including the other Trustees).

After numerous court delays we fast forward to this summer. A few residents caught wind of what was happening and began asking questions. These questions revealed the true scope of the lawsuit as the fines assessed by the township could total in excess of $300,000. The township however has expressed on numerous occasions that they are not interested in levying fines, but rather the removal of the zoning violation.

In the meantime, the other two Trustees removed the President from office, issued a formal violation for constructing, and passed a resolution ordering the fence to be down by a specific date or the Association will hire someone to remove it. The township has entered the proper paperwork in court to dismiss the case once the fence has been removed. Despite all of this, the resident still has not removed the fence. Even after counsel (hired by the individual in question) advised the resident to remove the section of fence, the fence still remains.

Here's where my question comes in. Our CC&R's allow for us to enter property to remove violations, but I'm still concerned about removing the fencing (despite the fact that it is built on HOA property) as the fence is his personal property. What are your thoughts about hiring a contractor to remove the fence? The contractor has been instructed to dismantle the fence in a manner that will allow the removed material to be reused.

I appreciate any advice and/or courses of action anyone can offer.

Thank you for your time.

I find it confusing as to why the township would involve the HOA.

WHO pulled the permits for the original fence? (applicant on township paperwork)

That person would be the person responsible for the the proper placement.

I would be interested to know the exact reason for the code violation. To say the township filed a lawsuit against the property owner because the fence was built on HOA property just doesn't fly. I can't imagine why the township would care unless the property is really owned by the township and not the HOA, in which case the HOA should not be involved. IMO, there is more to this story than meets the eye.

But in answer to the OP's question; although the CCRs may state the HOA has the authority to enter a member's property to correct a violation, that should never be done w/o first notifying the property owner. And, I would certainly review that section of the CCRs because that usually only pertains to correcting maintenance issues not other CCR violations. The HOA should be imposing penalties for every day that the fence remains in place -- maybe that will get the prop owner's attention!

IMHO - the HOA should step back from this fiasco. It's between the landowner (the townehip) and the homeowner, who built the fence. This violation is not on HOA property.

Unless the homeowner has written proof that the HOA approved the building of a fence as it stands today, the HOA has no jurisdiction or power to do anything.

This is a deep pockets thing. Have your lawyer recluse the HOA from the case.

Thank you for all of the feedback. Here's a couple answers to some of your questions.

The HOA was named on the violation and the lawsuit for the fact that the "zoning violation" is on HOA property. One of my original questions to the attorneys was to see why the HOA was involved? If we knew who built the fence, I thought it was appropriate to target that individual. However, Ohio law only allows for the property owner to be at fault, not necessarily the perpetrator. We as an HOA do have a legitimate claim for criminal trespass (entering the property and building the fence), but as of yet we have not sought that avenue. We first want to deal with the lawsuit.

The portion of fence that needs to be removed is in fact on HOA property.

The township only became concerned with the violation upon the complaint from a neighbor who has had past run-ins with the "fence builder".

I tried attaching a photo but I must be doing something wrong. Are we able to upload jpg's? if they're less than 200kb?

We thought the same thing. Unfortunately Ohio law prevents us from being named in the suit. The violation is in fact on HOA property.

If the true scope of the lawsuit is the fines assessed by the township could total in excess of $300,000 and the township is only concerned about removal of the zoning violation and would drop lawsuit. I would get that fence out of there ....

Inform the individual who built and may want the fence materials that they have X period of time to immediately remove the fence from HOA property. Because his structure is both violating HOA property and violating city ordinance if not removed by X date, it will then be removed and disposed of by the HOA and cost of removal billed to him the homeowner.

If he wants to try and sue at least it would not total in excess of $300,000 and most likely he will not sue as it appears he would not have any real grounds for a lawsuit.