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In March of 2004, I engaged in the authorized practice of extending my
existing fence and landscaping my yard. As I live in a nieghborhood
with an HOA, doing so without permission violates my CC&R.
In June of 2004, I receive a notice that I am in violation of my CC&R
as I haven't submitted an architectural modification request before
making an exterior change to my property. Immeidately I called the
company than manages the HOA. The management company indicated that I
need to submit the required architectural request form and it would be
sent to my board for approval.
After submitting the form, I get a call from the management company
that dictates:
1) My landscaping was approved, based as long as it does not alter
drainage.
2) My fence is denied. The fence "extension" is in front of the
property set back line. They detail the set back line as wherever the
original fence was. I have 30 days to remove the fence or face
significant fines per day.
I get a letter a few days later, explaining the above.
Immediately I remove the fence, have the materials hauled off.
Later, I contact my builder and obtain a "plat map" as I don't have a
copy of a survey done on my property.
The plat map indicates that my set back line is well in front of where
my extended fence was.
I bring this information to a board meeting, submit the same
architectural modification form for exactly the same fence and same
fence position, the board approves it.
At this point, I'm a bit pissed. I feel that the board was negligent
in denying my original request based on a set back line position,
especially when they had no idea where the set back line was. I feel
that the board acted inappropriately to deny my request.
I concede that according to my HOA CC&R, I should have submitted a
form before making any property changes. This is setup this way so
that people do not put up things that are a violation of the CC&R.
My other point of contention is that the board does not respond to all
CC&R forms submitted.
I feel that my HOA board is partly liable for the cost of building the
same fence twice and having it hauled off once.
I've met with the board and their position is that had I followed the
correct procedure that this loss would not have occured. They
detailed that the real issue with the fence was not that it was
positioned incorrectly, but one of the members believed that I would
be putting a boat behind the fence and thought that was unfair to
other property owners. They refuse any financial culpability, but
agree that they share some of the "blame" in regard to this issue.
I'm seeking opinions on if I have any sort of case in regard to civil
liability on this issue. IE, I am thinking of suing the HOA for a %
of the loss incurred over the fence. My main point of contention
would be that the board acted recklessly and improperly to deny my
fence based on setback line position without checking where that
setback line was. Again, the HOA is associated with the builder, so
it's a trivial process for them to check. Had they denied my fence
based on athestics, or any other number of things that the board has
the right to do, I would not consider this such a big issue.
Advice appreciated.
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I concede that according to my HOA CC&R, I should have submitted a
form before making any property changes. This is setup this way so
that people do not put up things that are a violation of the CC&R.
IANAL but have a fair bit of experience with HOAs (both on and off the
board). The snip above is really what matters - you made modifications to
your property without first obtaining approval. The observation that your
HOA retroactively approved part of your work in spite of this tells me that
they are at least somewhat reasonable. Your second error was to tear down
the fence immediately rather than find the plat to determine the actual
location of your setback line. I imagine that had you found that
documentation and presented it to the board in a timely manner, they would
have retroactively approved your fence as well (as they did approve the
fence when you resubmitted your plans with the appropriate documentation).
You argue that it would have been trivial for them to check, but one might
counter that it was your responsibility to provide that information to the
board and that their action to deny the fence without going to the trouble
of checking for themselves was not negligence - I would have voted the same
way under those circumstances. Note that they did give you thirty days -
plenty of time to find the plat and bring the information to their
attention. My opinion is that you have no grounds for a lawsuit. If you file
and win (which I find unlikely) you would probably gain a small judgment but
also earn the eternal enmity of both the HOA board and your neighbors (whose
dues have to pay the cost of both defending the HOA in court (in any event)
and cover the settlement (if you win). Is it worth it?
--
John Goulden
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On 23 Sep 2004 11:24:42 -0700 Anonymous <cb1000rider@yahoo.com> whittled these words:
After submitting the form, I get a call from the management company
that dictates:
1) My landscaping was approved, based as long as it does not alter
drainage.
2) My fence is denied. The fence "extension" is in front of the
property set back line. They detail the set back line as wherever the
original fence was. I have 30 days to remove the fence or face
significant fines per day.
Later, I contact my builder and obtain a "plat map" as I don't have a
copy of a survey done on my property.
The plat map indicates that my set back line is well in front of where
my extended fence was.
I bring this information to a board meeting, submit the same
architectural modification form for exactly the same fence and same
fence position, the board approves it.
At this point, I'm a bit pissed. I feel that the board was negligent
in denying my original request based on a set back line position,
especially when they had no idea where the set back line was. I feel
that the board acted inappropriately to deny my request.
YOU didn't know where the line was but the board was negligent? I don't
see it that way. It is your proposal and it is your responsibly to show
compliance. The board acted perfectly appropriately, in both cases.
--
Diane Blackman
http://dog-play.com/
http://dogplay.com/Shop/
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"John D. Goulden" <jgoulden_news@goulden.org> wrote in message news:<cived4029j5@news1.newsguy.com>...>
IANAL but have a fair bit of experience with HOAs (both on and off the
board). The snip above is really what matters - you made modifications to
your property without first obtaining approval. The observation that your
HOA retroactively approved part of your work in spite of this tells me that
they are at least somewhat reasonable. Your second error was to tear down
the fence immediately rather than find the plat to determine the actual
location of your setback line. I imagine that had you found that
documentation and presented it to the board in a timely manner, they would
have retroactively approved your fence as well (as they did approve the
fence when you resubmitted your plans with the appropriate documentation).
You argue that it would have been trivial for them to check, but one might
counter that it was your responsibility to provide that information to the
board and that their action to deny the fence without going to the trouble
of checking for themselves was not negligence - I would have voted the same
way under those circumstances. Note that they did give you thirty days -
plenty of time to find the plat and bring the information to their
attention. My opinion is that you have no grounds for a lawsuit. If you file
and win (which I find unlikely) you would probably gain a small judgment but
also earn the eternal enmity of both the HOA board and your neighbors (whose
dues have to pay the cost of both defending the HOA in court (in any event)
and cover the settlement (if you win). Is it worth it?
First:
Thank you for the advice. Based on your advice I not proceed in
regard to any sort of legal action.
A few comments:
1) The board didn't just "deny" the fence. Had they denied it for
lack of information about property lines or the 100 other reasons that
a board can actually deny any modification, I would have been fine
with it. Instead, they told me that it was denied because of
placement in relation to a property line. I removed it immediately
because I thought the board would know about property lines better
than me and the fact that I didn't want to pay $30/day. If it was a
non-technical issue that was subject to some "negotiation" - I would
have appealed. As it turns out, they made a violation up because they
didn't want to have a boat parked behind that fence. The violation
they choose to make up was legally incorrect. They should have
choosen a better "violation".
2) There are 2 members on my HOA board. Both of them have run the
board from day one. I could care less if they like me or not. They
do not choose to interact with the home owners. I've talked with them
several times in a very friendly manner and they believe that their
job is to interface with the management company, not with other home
owners. They do not believe in building "personal relationships" with
the home owners.
3) Less than 50% of the homes in my area pay their HOA dues. This
means that the board is in the process of warning, fining, leining, or
forclosing on all of these properties. I've reviewed their budgets
over the last 2 years and this is a losing action for the HOA. The
homes in this area are < 4 years old and have all lost value due to
new home construction. Without a significant down payment, all of
these homes are worth less than the remaining 1st lein. In most
cases, the mortgage holder has forclosed at least once.
4) It takes a 50% vote from all the lot owners to remove the HOA.
I've received a warning from the management company that if I choose
to gather signatures regarding removal of the HOA that they will begin
to notify all of the mortgage holders. The management company claims
that because the HOA was part of the terms on the originals mortgages,
that removing the HOA may result in making many of the mortgages come
due... I don't believe a word of this, but it basically tells me that
they'll fight in regard to keeping their relationship with the HOA.
Needless to say, I don't like the HOA. My home value would be better
increased by using my HOA dues to advance my mortgage payments.
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Anonymous wrote:
A few comments:
2) There are 2 members on my HOA board. Both of them have run the
board from day one. I could care less if they like me or not. They
do not choose to interact with the home owners. I've talked with them
several times in a very friendly manner and they believe that their
job is to interface with the management company, not with other home
owners. They do not believe in building "personal relationships" with
the home owners.
From experience, directors are forced into this attitude by the way
they are treated by other homeowners. I recently resigned from my board
rather than deal with any more of the petty personal attacks. For every
constructive cooperative member, there are three out their who will make
your life miserable.
3) Less than 50% of the homes in my area pay their HOA dues. This
means that the board is in the process of warning, fining, leining, or
forclosing on all of these properties. I've reviewed their budgets
over the last 2 years and this is a losing action for the HOA. The
homes in this area are < 4 years old and have all lost value due to
new home construction. Without a significant down payment, all of
these homes are worth less than the remaining 1st lein. In most
cases, the mortgage holder has forclosed at least once.
The board has an obligation to attempt to collect assessments. It might
be financially wise to decide not to foreclose and possibly not to lien
if the returns are as bad as you say. The only alternative is not to
attempt to collect assessments from anybody. If all assessments are
essentially voluntary then the individual assessment amount is going to
skyrocket.
4) It takes a 50% vote from all the lot owners to remove the HOA.
I've received a warning from the management company that if I choose
to gather signatures regarding removal of the HOA that they will begin
to notify all of the mortgage holders. The management company claims
that because the HOA was part of the terms on the originals mortgages,
that removing the HOA may result in making many of the mortgages come
due... I don't believe a word of this, but it basically tells me that
they'll fight in regard to keeping their relationship with the HOA.
Here is the language from my mortgage agreement's Planned Unit
Development Rider which appears to be a standard form*;
"E. Lender's Prior Consent. Borrower shall not, except after notice to
Lender and with Lender's prior written consent, either partition or
subdivide the Property or consent to: (i) the abandonment or termination
of the PUD..."
*Multistate Pud Rider - Single Family - Fannie Mae/Freddie Mac UNIFORM
INSTRUMENT Form 3150
VMP MORTGAGE FORMS (800)521-7291
Which means, your lender can call your mortgage due if you vote to
disband your HOA. However they can't do anything to people who voted
against dissolution. So gather your signatures and then vote against the
motion.
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How old is your neighborhood and when were the rules last updated or
recertified?
I had same problem from my HOA in Georgia. I would get letters due to my
neighbor complaining and then threatening phone calls at 10 or 11 pm. I
finally had enough and verified the covenants at the court house, verdict
was that rules expired without a vote. I am not held under any obligation
from the association and am suing the past and current "Presidents" for
violation of my civil rights and etc.
emailmark@bellsouth.net
Anonymous wrote:
From experience, directors are forced into this attitude by the way they
are treated by other homeowners. I recently resigned from my board rather
than deal with any more of the petty personal attacks. For every
constructive cooperative member, there are three out their who will make
your life miserable.
The board has an obligation to attempt to collect assessments. It might be
financially wise to decide not to foreclose and possibly not to lien if
the returns are as bad as you say. The only alternative is not to attempt
to collect assessments from anybody. If all assessments are essentially
voluntary then the individual assessment amount is going to skyrocket.
Here is the language from my mortgage agreement's Planned Unit Development
Rider which appears to be a standard form*;
"E. Lender's Prior Consent. Borrower shall not, except after notice to
Lender and with Lender's prior written consent, either partition or
subdivide the Property or consent to: (i) the abandonment or termination
of the PUD..."
*Multistate Pud Rider - Single Family - Fannie Mae/Freddie Mac UNIFORM
INSTRUMENT Form 3150
VMP MORTGAGE FORMS (800)521-7291
Which means, your lender can call your mortgage due if you vote to disband
your HOA. However they can't do anything to people who voted against
dissolution. So gather your signatures and then vote against the motion.
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TOTE@dog-play.com wrote in message news:<2rh7ccF1a06vpU1@uni-berlin.de>...
YOU didn't know where the line was but the board was negligent? I don't
see it that way. It is your proposal and it is your responsibly to show
compliance. The board acted perfectly appropriately, in both cases.
I had a "good idea" where the line was, based on a recommendation from
an architect. I bought my home in forclosure, so there was no
official survey done. I believed at the time there was no way to come
up with a survey, short of paying the $300 to have one done.
I called the board "negligent" because they denied the fence based on
where they believed the set back line to be, never mind the fact that
if it was where the board dictated my entire house was a violation of
code. My point was that the board should have done:
1) Ruled that they cannot approve the fence without a plat map or
survey and by default I'm in violation (no approval).
2) Ruled that they didn't like where the fence was or how the fence
looked.
Again, it isn't the fact of ruling against fence approval, it's that
they used a fictious basis for that denial.
They chose to deny the fence based on a legal line issue of which they
had no education. Again, had they denied it for any host of other
reasons, I'd have no issue with such.
What miffed me even more is that one of the board members told me
later, in front of several other people - they had seen a boat parked
behind that fence at one time and were going to do their best to make
sure I couldn't keep that boat.
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In March of 2004, I engaged in the authorized practice of extending my
existing fence and landscaping my yard. As I live in a nieghborhood
with an HOA, doing so without permission violates my CC&R.
In June of 2004, I receive a notice that I am in violation of my CC&R
as I haven't submitted an architectural modification request before
making an exterior change to my property. Immeidately I called the
company than manages the HOA. The management company indicated that I
need to submit the required architectural request form and it would be
sent to my board for approval.
After submitting the form, I get a call from the management company
that dictates:
1) My landscaping was approved, based as long as it does not alter
drainage.
2) My fence is denied. The fence "extension" is in front of the
property set back line. They detail the set back line as wherever the
original fence was. I have 30 days to remove the fence or face
significant fines per day.
Some zoning boards and perhaps HOA boards have some very strict
rules which give them NO discretion whatever in your situation.
(I call these the "We're the board and you're not" rules.) If
the <whatever> was constructed without approval, they can't approve
it until you submit a request *AFTER* demoloshing the offending
<whatever>. In at least one situation I've heard of, the board is
NOT ALLOWED to approve something that had been constructed without
approval for some ridiculously long time, like 50 years after its
demolition. This resulted in some neighbors not being able to build
fences and some that could, because of the actions of prior owners
long ago.
Gordon L. Burditt
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Mark,
Good for you!!! I live in a very old neighborhood with many elderly
residents. A group of people got together, mostly consisting of people
buying cheap lots here and building expensive homes, and decided the these
older homes were not good enough for the subdivision. They created a Civic
Association and were counting their kids votes to make changes to our deed
restrictions. Nothing people do these days surprises me anymore. I sued the
proposed association after finding out they gather signatures under a false
pretext telling everyone that they are just trying to keep mobile homes out.
Sadly these elderly people have too much trust. I sued the proposed
association for purportedly trying to make this a mandatory association.
I lived in my home for 15 years, property values have increased 10k or more
a year "without" any association because of the growing development in the
area.
I would never give up my property rights to increase the value of my home.
This is my home, these people don't support me, they don't pay my bills,
they are not my family, they are not my friends, I do not owe them a damn
thing, and I surely do not consider them as neighbors.
http://www.petitiononline.com/homeback
How old is your neighborhood and when were the rules last updated or
recertified?
I had same problem from my HOA in Georgia. I would get letters due to my
neighbor complaining and then threatening phone calls at 10 or 11 pm. I
finally had enough and verified the covenants at the court house, verdict
was that rules expired without a vote. I am not held under any obligation
from the association and am suing the past and current "Presidents" for
violation of my civil rights and etc.
emailmark@bellsouth.net
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gordonb.0odil@burditt.org (Gordon Burditt) wrote in message news:<cjda36$oos@library2.airnews.net>...> Some zoning boards and perhaps HOA boards have some very strict
rules which give them NO discretion whatever in your situation.
(I call these the "We're the board and you're not" rules.) If
the <whatever> was constructed without approval, they can't approve
it until you submit a request *AFTER* demoloshing the offending
<whatever>. In at least one situation I've heard of, the board is
NOT ALLOWED to approve something that had been constructed without
approval for some ridiculously long time, like 50 years after its
demolition. This resulted in some neighbors not being able to build
fences and some that could, because of the actions of prior owners
long ago.
Gordon L. Burditt
Gordon,
That's not the case here. The board granted 30 days (being NICE) for
me to submit the required request. They could have denied it on the
spot and forced removal based on the fact that it wasn't approved, but
my CC&R doesn't not specifically say that they have to do so.
They just went and denied it later based on a property line that they
knew nothing about. If they had denied it due to invalid process, I
wouldn't have been so bothered by it. The property line that they
"assumed" was wrong. They approved it after I proved to them where
the "set back" line was.. The request for the fence never changed and
was later approved as I submitted originally...
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