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Subject: Extending Fence Line Into Common Elements
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cpoulin
(Colorado)

Posts:35


01/22/2008 12:02 AM  
I'm an owner in a Colorado Planned Unit Development of about 90 Units. We recently replaced the perimeter fencing and patio enclosures.

Three people requested to enlarge their Limited Common Elements. The Declaration specifically states that no futher division of the Common(shared) Elements can be done.

The problem is that the BOD stated that if the owners paid for the materials they would allow it. To the best of my knowledge, this would be a violation of the Declaration.

I questioned why they approved this action and was told the management company told them they got a permit from the city. I called the city and was told they wouldn't issue a permit that was in conflict with the Declaration.

There are at least 4 board members who know what the Declaration says and the management company has a copy of the Declaration and should know what it states. Please give me some advice on this matter.

TomS11
(Florida)

Posts:29


01/22/2008 4:05 AM  
my assoc. does that alot down here in fla. to do it right it is deeded to the member and the assoc. saves on taxes and maint. the biggest expense for hoas is common area.
JanP1


Posts:0


01/22/2008 6:43 AM  
Call up the mananger and ask for an appointment, also ask for a copy of the governing documents (I am surprised you didn't get a copy at close of escrow). Ask the manager to give you a little time and education.
MicheleD
(Kentucky)

Posts:4491


01/22/2008 7:12 AM  
In Kentucky, at least in our community, we couldn't "deed" even an inch of the common area to anyone else, regardless. Our docs forbid it. Someone wanted to lease an easement to get to and from his property on the other side, and we weren't even allowed to do that.

cpoulin
(Colorado)

Posts:35


01/22/2008 10:34 AM  
Thank you for your information. I do have a copy of the official Declaration. That is why I know what is in it and what it says.

Article II - Section 10 - Nonpartitionability and Transfer if Common Element - specifies "Elements shall be owned by all of the Owners of the Units and shall remain undivided.

The manager, is the management company hired by the association to help maintain our development. The BOD governs what the management company does or doesn't do.

Please expand on your definition of education.
cpoulin
(Colorado)

Posts:35


01/22/2008 10:57 AM  
Posted By JanP1 on 01/22/2008 6:43 AM
Call up the mananger and ask for an appointment, also ask for a copy of the governing documents (I am surprised you didn't get a copy at close of escrow). Ask the manager to give you a little time and education.




Thank you for your information. I do have a copy of the official Declaration. That is why I know what is in it and what it says.

Article II - Section 10 - Nonpartitionability and Transfer if Common Element - specifies "Elements shall be owned by all of the Owners of the Units and shall remain undivided.

The manager, is the management company hired by the association to help maintain our development. The BOD governs what the management company does or doesn't do.

Please expand on your definition of education.
RobertR1
(South Carolina)

Posts:5164


01/22/2008 10:57 AM  
Cpoulin,
I am sure Michele can add to this.

This provision to not partion is a very strong indication the courts would not allow this.

I have checked with our POA here and they feel as I do. If the documents say you can't partion, you can't partition. In a condo if the building were all blowed away and the vote to sell the property as directed by the covenants, then you could sell the propety and dispense the money shares to the owners.

I can not see anyway the Board can give away property, loan property for such use as a fence. There could be a case in some HOA's where survey lines were drawn incorrectly and an owner of a lot does not have access to his property, then the HOA can "designate the property for his access, after drawning up specific doccuments that do not say the property is partioned.

I would think someone would listen to reason. If not send a certified letter to the Board with a return receipt.

State your case and request they answer in writing. If they don't answer in ten days trey again same way and inform them that you will turn the matter over to attorney. Get a first visit free session with a lawyer and aske him to send letter. That will probably do it.
GloriaM
(North Carolina)

Posts:829


01/23/2008 1:23 AM  
The board is over stepping their bounds here. The board cannot approve any HO to encroach upon common property. Especially in a townhome where common area is everywhere and it all belongs to the HOA.

This can definately be challenged in court and IMHO the board would be on the loosing end on this one.

One poster stated "my board does it all the time"; it has been my experience to find some HO's build their fence without ARC approval, or even if they received ARC approval, they build the fence encroaching on common area. At this point it is the boards responsiblity to write this owner informing them of the encroachment and move accordingly.
RobertR1
(South Carolina)

Posts:5164


01/23/2008 3:51 AM  
Tom,
I think your association may find at some point they have placed the owners in Jepordy. If you read the comments on this post you will see the problem. This can be very costly to your association if an owner comes in and disputes this acxtion.
I would looki into this very closely. If you are an HOA, a COA, a POA or a condo and registered and licensed by the state, you (the association) can not give away other peoples property (the owners own this property as a member of your association) and sell it.

PaulM
(Pennsylvania)

Posts:1347


01/23/2008 5:26 AM  
cpoulin: You must differentiate between two ground areas: 1) Common Element and 2) Limited Common Element. IF the ground in question has been determined to be LIMITED COMMON the quote you posted does not apply here since it refers to COMMON ELEMENTS.

Having said that, you must determine from your docs what is LIMITED COMMON ELEMENT--under Descriptions in the front portion of Declaration--Article I Property: Defined Terms.

This is not a matter for the Board or PM to clear up, but for the official authorities--your local municipal office will advise how the ground has been recorded, affecting each resident based on actual property owned. They will also refer to the Plat Plan on which is shown what ground, if any, has been deeded to the unit owner, and whether additional LIMITED COMMON can be divided/purchased.



TomS11
(Florida)

Posts:29


01/23/2008 6:31 AM  
robert, i quess my hoa is unique, i wont bother digging them out right now but i have read the docs and they allow for it. it they even address being able to lease a common area to outside interests. i am guessing that because the developer included some comm. properties ( a few stores that we have), that that is the reason for the design of our docs.
cpoulin
(Colorado)

Posts:35


01/23/2008 11:50 AM  
PaulM - Thankyou for the information. I will visit the county offices and look over the recorded plats and common element designated in those records.

If the information with the county show that the common area is where the unit owner placed the fence, then who is responsible for removal of the fencing?

The owner of the unit should know their documents and read them. If they are in violation, then they should have to pay to remove the fence and any damage caused by the installation of the fence. But the owner will probably say, "Well the BOD let me do it.", but the courts usually don't accept ignorance of the rules as a ground for innocence to violation. If I'm incorrect please offer additional information to clarify.
DonnaS
(Tennessee)

Posts:5671


01/23/2008 12:08 PM  

In a perfect world, anyone who lives in a controlled developement such as a HOA, would read, know and understand their limits and responsibilities of such living. Well, we certainly are not in that world as we can vouch for by reading all of the posts.

Then we get a Board, who SHOULD know what the documents require of each member and either chose to ignore or cannot figure out what they have read. That is when the Board allows the members to put fences on common property, and all of the rest that we have heard about.

You cannot lend, lease encrouch or borrow common property and that include installing a fence on it. You put it in, you take it out. It does not matter if the Board did or did not give approval for it. They screwed up and will be held accountable for it someplace or someday soon.

Your common elements will be on a plat map someplace and your office or P.M should have a copy otherwise, yes, the County definitely has it.If all else fails, a simple survey can determine the boundries.
cpoulin
(Colorado)

Posts:35


01/23/2008 12:27 PM  
GloriaM - Thankyou for the information. This is a townhome development.

I contacted the city to see what restrictions apply to our development and received the ODP (Original Developer Plan). This shows the fence around the patio, put in by the developer.

It shows exactly how the enclosure should be, as opposed to what owners have been doing (lengthening, extending out, gates, etc.) I also checked at that time if there had been any requests for an amendment to the ODP. I was informed no requests had been made.

To my knowledge, the city shouldn't approve a permit that would conflict with the ODP and declaration, especially if there are no requests on file. Please offer any additional information you know.
PaulM
(Pennsylvania)

Posts:1347


01/23/2008 2:05 PM  
cpoulin:

The City would not issue a permit that was in violation to your recorded documents, of which they have a copy and which they are held to.
So, if the homeowner or the PM is telling you otherwise, you need to have the County on board here. When they refer to the fact that no amendments have been made to the docs, they mean none have been officially recorded as changes.

So you remain left with status quo--all to be done according to your documents, using the plat plan and particularlars dictating how the enclosures SHOULD be extended.

The local officials need to take a walk thru to look at changes which have been made per the Board's OK. The Board's OK does not override municipal code and requirements. You will soon learn if it is correct or incorrect and according to code or not. The Board needs to step back and allow the local authorities to dictate what is valid or not, and all is to be done according to regulations, per declaration and local municipal code. You want to have the local authorities on the community's side, not the other way around. They have a job to do, and you want to allow them to do it.

If you need to encourage a Task Force Committee to be formed to speak with the local officials, then do it. This is not a time to point fingers, but to learn the correct way to manage building changes. All to be done for the overall good of the community itself, and to learn the correct way to make enclosure additions to avoid future building problems which may escalate into big trouble.




RobertR1
(South Carolina)

Posts:5164


01/23/2008 3:24 PM  
Tom,
No HOA is unigue in that they all have some of the same ruling documents, same as condos. You better dig your documents out and look at them again. The few strores you have or commercial building are not on common property. They may be called the Commons or they may be referred to by the developer as common in that you can buy there. Think about it. Common Property is that property that your association has a deed to. Now do you think those stores are owned by you and your neighbors? If so who signed their lease, who is collecting rent, who built them?

As stated Common Property is that property that all the association members own in common. You pay your monthly fees to maintain all the common property. Each owner owns a share of this property. If someone is renting or leasing any of this property, they can only do so with each Home owner (100%) agreeing to this arrangement. If a new owner moves in, the old owner's rights to common property go with the sale. The new owner can say, I don't agree to this and sue everyone within two miles of the place.

Why would a owner allow someone to come in and build a store on their property. See above. Tom, I have no idea what else to say.
You can Google or Wakepedia "Common Proporties" if you like.

Suppose the developer did build some stores on Common property. Then he owes the association for the rent received because he built illegally of the home owners land. And your association has to manage and pay taxes on this property and have the deed with the buildings on it.
RobertR1
(South Carolina)

Posts:5164


01/23/2008 3:36 PM  
Paul,
In a condo, you cannot partition any common property, meaniong any property that is held jointly by all owners.

I would believe that would be the normal thing to do in an HOA. Out POA will not partition any common property, unless it is for the use of all owners. Say a playground for kids, might be limited common, I guess, if you are saying that HOA have Limited commonn property.

I suppose some parking spaces by the pool reserved for handicap could be considered Limited common property but it would be a special specific reason and in any event, it would not be deeded any different than the common property.

Straighten me out on this.
cpoulin
(Colorado)

Posts:35


01/23/2008 10:47 PM  
RobertR1 - Our declaration defines Common Elements as all the property on the development - whether it is General Common Elements, Limited Common Elements or Restricted Common Elements.

To differentiate:
General Common Elements - for the use of all owners in the development (lawns, pool, parking areas, mail box area, etc).
Limited Common Elements - the common element designated in the Declaration reserved for use by fewer than all of the owners of the Individual Units (the individual townhome that has a deed)
Reserved Common Elements - the part of the common elements reserved or restricted for use by the BOD or hired agents to maintain, repair & manage the general and limited common elements(swimming pool maintenance facility shown on map)

The parking spaces for the handicap would still be a Common Element, just with the distinction for use by the handicap, but it still belongs to all of the owners and not just one owner. Unless your Declaration, Rules, etc. specifies anything different.


cpoulin
(Colorado)

Posts:35


01/23/2008 11:41 PM  
PaulM:
I agree that this matter should be handled by the county or municipality. I need to clarify: the patio enclosure is one panel, with posts and rails constructed by the Developer. They were placed in a specific location, with a specific height and length. They are located on the common element but offer privacy around the units back porch (Limited Common Element).
Changes to the specifications on the ODP would have to be submitted to the city and approved by the city prior to any change. The city wouldn't, or shouldn't approve any such request since it would change the original location and this would conflict with the Declaration.
The enclosures and perimeter fence should have been put back up in the same location as the original, since we only replaced the old with new.
Thank you for your help and I will look into the matter with the district attorneys office, since I know the BOD or P.M. won't change this now that they have received money from the owners to make the change.
By the way, the P.M. was the person who found the fencing company and when I went on the Secretary of State website to look up the company, I found that they have been delinquent for the last two years for failure to submitt annual reports.

PaulM
(Pennsylvania)

Posts:1347


01/24/2008 5:33 AM  
cpoulin: You have much going on here which is hidden from view and is operating 'behind the scenes'.

You have the Board okaying bldg. changes which are against the Declaration's dictates, you have the PM as founder of the fencing company the Board is okaying to use for fencing in area/s which go against the Declaration, the fencing company (PM) is 'delinquent' in filing for the past 2 years, and the BOD and PM "have received money from the owners to make the change."

As for the latter, I question WHY the Board and PM are involved in receiving money from owners for bldg./fencing changes they want done. Something is very wrong... These are serious issues and the entire situation needs to be put in the hands of local authorities to determine what is going on. Protect Yourself!






RobertR1
(South Carolina)

Posts:5164


01/24/2008 5:50 AM  
cpoulin,

Your documents defines all the property on the developement as Common Elements. (See above) This would normally mean all property is owned by all owners. Common referring to ownership in common.

Your deffinition above considers all the common elements, not just property. It also speaks not to ownership but to use. A reserved parking space is making that property limited to use. Hence it is limited to use for specific purpose.

Reserved common elements above: Again yopu refer to use, not ownership.

In most states I believe all common PROPERTY (Has a deed issued by the state)and that deed describes the boundries of the property (LAND) . That property is commonly referred to as "Running with the Land." Property that runs with the land, in this case is all the LAND owed by the association. It cannot be partioned unless the asszociation is dissolved and the property sold and proceeds distributed to the owners of the Land.

In your post to Paul, you state property was sold to individual owners. Don't you agree that property has to convey a deed? Where did they get a deed? Ask them to show you a deed to that property. Look the individual's name up on line at the courthouse and look at his deed, does it describe this land.

IU suspect what the Board has done is assigned this property to use by the individual and is in effect charging them rent. Now normally property(land) that runs with the land cannot be partioned. It is owned not by the PM or the Board (ask them to show you their deed) it is owned jointly by the owners. If you and your brother owned a piece of land jointly, could your brother sell that land without your permission and signature?



cpoulin
(Colorado)

Posts:35


01/24/2008 9:04 AM  
PaulM:
Please give me more specific information about "local authorities".
I'm not sure who you mean. The district attorney, the commisioner's office, the county assesor, again not sure who you mean???
Thank you for your reply.
cpoulin
(Colorado)

Posts:35


01/24/2008 9:22 AM  
RobertR1:
Sorry for any confusion. Before the fence and patio enclosure replacement started, the BOD let owners know they had to submitt a request for any changes to their enclosures, but stipulated they would only approve changes that were within city code and the owner would have to pay for all materials.
Three owners requested changes(extentions into general common areas) and one owner(4th) demanded to extend her area if she was paying for the cost of materials to do it.
The owners won't be charged rent, just the cost of the extra materials to do the expansion. And your right, if the area they want to expand into doesn't belong to the BOD or P.M. they don't have the authority to allow this action. This would be deemed as further partion of the common elements and would be in conflict with the Declaration.
PaulM
(Pennsylvania)

Posts:1347


01/24/2008 9:33 AM  
cpoulin: By local authorities, I am referring to the local municipality in which you reside, the land development/code enforcement officials. The developer filed plat plans and an overview of the development with this office and the officials had to approve. The owners then, when wanting to build extensions, enclosures, etc. must apply for a permit with this local office to ensure that the addition/bldg. when completed is inspected by them and they approve what has been done according to bldg. codes and standards.

You are speaking about owners encroaching on common ground, building or extending their existing patio/enclosure areas and installing fencing. Community owners are prevented from building on common ground as other posters here have stated to you. This is a multi-level problem for owners, Board, PM and local code officials.

I would start by speaking in person with your municipal office, ask to speak to the code enforcer, produce the declaration and have them state to you the process for bldg. on common ground, limited common ground, etc. Also, whether permits are necessary, etc. They will be more than happy to assist to get this entire problem rectified so your assn. can make bldg. changes in the correct manner and with 'their blessing'.




RobertR1
(South Carolina)

Posts:5164


01/24/2008 9:48 AM  
Pauls latest is right where you should start.

I Googled "Common Property" and there is a ton of stuff there. I ran across one site (in the first 3 or 4 sites Google pulls up) that even has a e-mail feature you can ask a lawyer a direct question.

You might want to have some of this stuff when you go to the city hall or where ever to take along. Anything you can do to impress the clerks that you know what you are talking about. I usually carry a bulging folder that I constantly refer to when talking with the front line personnel. If impressed you get to go and talk to a supervisor, and if you catch their interest, they can be invaluable.
cpoulin
(Colorado)

Posts:35


01/25/2008 9:16 AM  
PaulM:
Thank you for your response and I will move forward on this matter. If the city(municipality) finds that the enclosures were not approved and no permit acquired by the owner or P.M., is the association responsible to correct this or the owner.
The owners of the units were the ones wanting to have the changes made. Please respond when you can. Thanks.
PaulM
(Pennsylvania)

Posts:1347


01/25/2008 9:23 AM  
cpoulin: Once the city becomes involved, as they should, they will handle all according to their legal codes and requirements. If they tell you all has been done correctly and is within code and declaration requirements, then you know right from the source that Board, PM, owners can obviously continue as they have been. Either way, I would ask them to put it in writing to the Board and ensure also that the Board communicates the city's findings to the entire community, right or wrong.



cpoulin
(Colorado)

Posts:35


01/25/2008 9:26 AM  
RobertR1:
Thank you for your input and I'll give the Google suggestion a try.
DonnaS
(Tennessee)

Posts:5671


01/25/2008 9:37 AM  

Paul,
It doesn't matter any longer about who allowed these fences but the question is who owns the fence? I believe that the owners of the units with fences in common property are the ones responsible for their removal. Because of these being Townhomes, is there a limited common property involved? I mean, do you own the lawns behind the units or is that the common property also?

The association is responsible in the part to enforce the removal of the fences but they will not have to physically remove or pay for their removal.This is a case where everyone will point fingers and say " He said I could or they didn't say we could" and all of that story but the common area is not open to any variances--from no one.
RobertR1
(South Carolina)

Posts:5164


01/25/2008 2:49 PM  
There are several things that worry me about this post Donna and Paul. If this is a case of a PM or a manager or a Board deciding," I know what the law says, I'm going to do it anyway", then our poster is in for a long haul. I say that because if there is intentional wrong doing I would bet this is not the only thing happening.

I think Paul's idea to get the county to force them to make the changes and I agree the folks that infringed should make the change and also restore the common property. If, as I suspect, the Board has or allowed this property to be dedicated to the fence extenders and have some kind of contract about it, then it is not a simple matter. In any event I hope we have conveysed to our poster, he may step on a hornets nest and all sorts of thing will start flying around. He will be under the gun if any action is taken towards the Board or Management, if they elected to fudge the law a little.

So, the better he builds his case the more he will be ahead of the game as far as what may come down the pike. He needs some support from the owners, if the powers that are, start to attack him as a trouble maker. The actions about the fencing indicates to me they will not name him "owner of the Year." Even if he gets proven right.
cpoulin
(Colorado)

Posts:35


01/28/2008 10:33 AM  
DonnaS: It does come down to not who allowed this matter, but as to the fact that the Declaration specifies as you stated, "common areas are not open to any variances".
The only legal way that the common areas could be altered would be if atleast two thirds of all members of the association agree and the documentation be filed with the County before the action is taken.
To date there are no amendments to the Declaration recorded.
cpoulin
(Colorado)

Posts:35


01/28/2008 10:52 AM  
RobertR1, PaulM and DonnaS:
Thank all of you for the input. All of you have been very helpful.
Yes, I probably won't be named "owner of the Year", but as you said, "When you step on a hornets nest, all sorts of things will start to fly around."
PaulM stated there are alot of things happening, not knowing this issue is only one of many that have occured in the past four years with the guidance of the current management company and BOD.
I don't plan on keeping this private and plan to get others involved for the protection of myself and the other home onwers in this association.
I already have had retalitory action against me by the management company, but I'm not the only one. If owners are required to obey the declaration with regard to monthly assesments(lien of foreclosure), then all owners have to adhere to the rules set down in the declaration.
To my knowledge the declaration doesn't say anything about selective enforcement of the declaration.
Again, thank all of you for your input and suggestions. Also, pray does help if you get the chance. Not meaning to offend anyone. Thankyou.


PaulM
(Pennsylvania)

Posts:1347


01/28/2008 10:54 AM  
cpoulin: You are correct in one sense--it's important to note that the Declaration specifies common areas and they are not to be partitioned....etc., but its also important for you and community residents to have revealed where any problems now lie and upon whose authority were those changes made.

We are well aware of what our assn. documents "do not allow", but, does it happen anyway? Yes, all the time. We are aware of what a Board's role
is to assn. members--to ensure the dictates of the official documents are followed and to maintain their fudiciary responsibility, but, does 'sh..' happen anyway? Yes, all the time.

It is extremely important in this situation to bring in a professional level of authority (local land officials) to review the patio changes and what may be 'common ground' alterations completed with the Board and PM's encouragement and approval collectively, but without benefit of an amendment change or membership vote.



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