Covenant dispute with hoa

Almost two decades ago I put in a request to build a fence it was approved. 18yrs after the new fence I needed to rebuild it due to broken post and rotted out fence panels. I was denied because they wanted me to move the fence in a different location because it went against the covenants. I refused and build the fence as it has been the last 18yrs. Now years later nothing happened and now when I put in request to upgrade and beautify my property I'm told no because of an unresolved fence issue. Its not in the covenants that they can do that. Now they claim they have their lawyer involved

My fence is not on a common area.

First: can you supply an actual timeline of events? "almost two decades ago", then "18yrs after", "Now years later" ... the numbers do not add up.

Second: have you actually heard from their attorney on this matter?

Third: you should attempt to get copies of your HOA's governing documents: By-laws, Covenants, ACC guidelines, etc. If your HOA has a website, they should be out there.

I do not know how much help HOATalk can be to you. If their attorney is already sending you letters, then you will probably need to find an attorney of your own. Sorry.

I'll briefly mention two things that may be helpful:

- Is there any kind of "grandfathering" mentioned in any of the governing documents? If your request was approved 18 years ago - do you have a copy of it still? - that might work to your advantage.

- I don't know Indiana law, but there is a legal principle called the Doctrine of Adverse Possession. I just ran across this website:

https://www.justia.com/real-estate/home-ownership/owning-a-home/adverse-possession-laws-50-state-survey/

For Indiana it says:

Indiana Adverse Possession Laws

Key law: Indiana Code Section 34-11-2-11; Section 32-21-7-1
Required duration: 10 years
An action for the recovery of the possession of real estate must be brought within 10 years after the cause of action accrues. Moreover, in an action to establish title to a property, possession of the property is not adverse to the owner in a manner that establishes title unless the adverse possessor pays all taxes and special assessments that the adverse possessor reasonably believes in good faith to be due on the property during the period for which the adverse possessor claims to have adversely possessed the property.

You'd need a a lawyer to weigh in, but if you've had a fence in place for 18 years - you might technically own the property. The Usual Disclaimers, I Am Not A Lawyer, etc.

Good luck with this!

Bill

Exactly what do the covenants say about a fence being flush with the side of a house?

Legally just because this (board-alleged) violation on your lot existed for years does not mean that, when the fence needs replacement, the HOA is obliged to approve the replacement.

Is there language in your governing documents that specify if a response is not received after 30 days it is deemed approve or is the language silent on how long the Association has to reply to an exterior change request?

Additionally, can you prove you sent in a request (email confirmation, certified letter, etc.)? Although it was 20 years ago, you might need such documentation if the issue goes to court.

Side note: I don't think you needed permission to rebuilt your fence. IF approval was given (or there is an auto approval after 30 days) then you were simply maintaining the existing fence in good order and repair (as likely required by the governing documents).

From 2005 to 2023 I never received a notice about my fence until I wanted to install a pergola in my yard

My fence starts at the rear of my house. There is no rule in the covenants that says the fence needs to be flush with your house and there are no rules that says the hoa can deny future projects for unrelated/unresolved issues. The hoa has a personal issue with me for whatever reason and they didn't think I would challenge them about the covenants. Every time I ask them to show me where it says that in the covenants, they tell me the same thing because of my fence. Now they had their lawyer send me a letter and one of the things they told their lawyer was the my pergola was not approved. But I sent their lawyer a screenshot shot from the portal showing it was approved. So this is what I'm dealing with.

I will get an attorney when I receive a letter back from their lawyer to see what they say about my letter. Depending on the results. Im not one to back down from a fight. I have to much of a paper trail on them.