HOA / neighbor fence issue

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Latest post 03-18-2013 8:50 PM by NicoleH. 16 replies.
  • 02-02-2012 4:38 PM

    HOA / neighbor fence issue

    I moved into my home about 26 months ago.  When I moved in I decided I wanted to build a fence that would extend to the front of my home on the left side of the property and the back of my home on the right side of the property.   I went through all thge proper channels and received approval / permits from both the HOA and the county.

    The day the fence was installed the VP of the HOA showed up at my house saying that the HOA stipulates that all fences must be built to the back of the house, not to the front.  Long story short - the HOA made a mistake in approving my fence.

    The HOA never did anything about this issue because it was their error, but now my neighbor is sueing me in an attempt to force me to move my fence.  Remember, I have approval from both the county and the HOA.  Is there case law out there that I should review?  Any situations where the HOA approved something they should not have?  Any feedback would be appreciated.  

  • 02-02-2012 4:58 PM In reply to

    Re: HOA / neighbor fence issue

    HOA Issues:
    my neighbor is sueing

    Have you been served a summons and complaint?

    Or is the neighbor just talking, writing, threatening?

    Sorry to have to ask those kinds of questions but so many people start their posts with "I'm being sued" when they haven't been sued yet.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-02-2012 5:27 PM In reply to

    • Drew
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    Re: HOA / neighbor fence issue

    Wait until he files suit--then repost--at first glace he has major uphill problems--bet lets see what theory he elects , if any. .



  • 02-03-2012 7:58 PM In reply to

    Re: HOA / neighbor fence issue

    He has already flied the law suit.  I was served with the papers about 14 days ago.  Thank you all in advance for your input!

  • 02-03-2012 8:09 PM In reply to

    Re: HOA / neighbor fence issue

    HOA Issues:

    He has already flied the law suit.  I was served with the papers about 14 days ago.

    OK.

    More questions. Critical that you answer each one.

    Small claims court?

    Higher court?

    Does he have a lawyer?

    What exactly is he alleging in the lawsuit and what is he asking? Are the allegations numbered?

    Does the summons require you to file an answer within a certain amount of days (often 20 from date of service, sometimes 30)?

    Or were you just given a date to go to court? If so, what date.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-03-2012 9:54 PM In reply to

    • DPH
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    Re: HOA / neighbor fence issue

    HOA Issues:
    Remember, I have approval from both the county and the HOA.

    When you consult with an attorney that handles real estate matters in response to this lawsuit, and you will have to respond, you might ask that person if your neighbor shouldn't be suing either the HOA or the County for approving the plans in the first place.  Personally I doubt that the County has any liability, but I would have to make sure my attorney considered the HOA.  Have you consulted a local attorney yet?  If not, don't snooze as your response might be due in a week or so.

     

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • 02-03-2012 10:44 PM In reply to

    • M Read
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    Re: HOA / neighbor fence issue

    Normally I suggest that a member of an hoa that is looking for a lawyer NOT get one associated with Community Associates Institute (CAI) or their offshoots because they work FOR the hoa against individual owners, but now--a first!--I am. In fact,maybe not. Or, maybe you need one to help you against your neighbor, and if that fails, a NOT CAI attorney to sue the hoa and board. Remember, the board and management co have insurance to protect themselves, and any lawsuit against them--including yours--is paid for in part by you. You might have a serious talk with the neighbor and have him sue the board, rather than you, since you did have approval. He really has no legitimate gripe (AFAIK) against you.

     

  • 02-03-2012 10:50 PM In reply to

    • Drew
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    Re: HOA / neighbor fence issue

    We don't know what is basis of his claim --sure would help.

    He may lack standing to sue on behalf of HOA for something in HOA CC&R's

    And if your construction was by permit  he may lack standing to sue  for any violation of building/zoning codes.

    Other than hot air his suit may be full of XXXX.



  • 02-04-2012 12:55 PM In reply to

    Re: HOA / neighbor fence issue

    I have not been very detaialed.  My apologies.  The paperwork I was served is from the Circut Court for the county I live in.  He does indeed have a lawyer.  The complaint states:

    1) My address

    2) That my wife and I live at that address

    3) That the community I live in was established under a Declaration of Covenants, Conditions, Restrictions, and Easementsrecorded by the county

    4) Basically that I am required to obey these Covenants, Conditions, Restritions, etc.

    5) By accepting my deed I agreed to these bylaws.

    6) The bylaws state "No fence shall be placed forward of the rear corner of the homes building foundation".

    7) The defendant advised me that I could not run the funce to the front of my property line. (He did, but I figured I would ask the HOA.  Again, the HOA approved the fence).

    8) He made numerous requests for me to remove the fence, but I failed to do so (This is not true.  The man has never spoken to me).

    9) Despite repated and continuing attempts to resolve the matter amicably I have refused to do so (again, not true).

    10) The continued use of the non-conforming fence is a nuisance and distinct breach of the Declaration.  Such a breach will cause damages to both the Plantiffs and property owners in the Community. 

    The Plaintiffs request the Court pass an order:

    A. Delcraing that I erected the fence that is in violation of the HOA documents

    B. Requiring I remove the fence

    C. Requiring I pay for the costs of the litigation and

    D. for such other and further relief as the nature of this cause may require.

    In my opinion, the guy should be sueing the HOA, not me.  They approved this fence!  Thoughts?

     

  • 02-04-2012 1:21 PM In reply to

    • Drew
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    Re: HOA / neighbor fence issue

    As a layman I would agree his quest should be to get an order upon HOA to undo that which it apparently approved.--Unless CC&Rs provide for private right to enforce them or such exists by law in your state.

    That said, you need to defend.

    My guess he has untra low odds to get award of his attorney fees--probably in there for scare effect.

    For all I know your nonconforming fence adds to property values.

    If the legal bill meter to defend runs slower than the legal bill meter to attack --I'd dig in with my attorney and try to make his legal meter spin.

    Is your HOA approval of your plans in writing?

     



  • 02-04-2012 2:10 PM In reply to

    • M Read
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    Re: HOA / neighbor fence issue

    Besides the easily available ccrs, your hoa may also have what might be called a RULES BOOK, that is possibly not generally known about, not published to the community. In the hoa I was in for over 18 years, it wasn't until I became board president about 14 years in, and a copy was given me--not the other board members! So of course I made copies for them, and made the owners aware of them. What our RULES BOOK contained was the changes over the years of the ccrs. It turns out that in order for ccrs to be enforceable (in my state) they have to be officially recorded with the county/state. That takes big bucks for attorney work & time, and the recording itself. Not many hoas want to spend money that way. Our rule book had over ten pages, both sides, small print and single spaced, of changes to the ccrs that, unless you ran into them, you would never know about them. A ccr in the "official book" given all owners may have been changed one or more times, and only the board members voting on that would know.

    SO, even if your owners manual says one thing, that MAY have been changed but no-one informed, or, the board for whatever reason may have decided to approve your fence anyway. In at least one place in the ccrs I lived under, there was a sentence that read in part, something like, " just cuz we don't enforce a rule against someone else every time, doesn't mean we can't enforce it against you every time." Hoas are too often about selective enforcement. Have you dsriven around your hoa--all of it, all sections of it (mine was in 3 sections, and one section was apart from the other two, and all 3 have different names) to see if anyone else has such a fence?

     

  • 02-04-2012 2:28 PM In reply to

    Re: HOA / neighbor fence issue

    HOA Issues:
    In my opinion, the guy should be sueing the HOA, not me

    No, you're the right guy to sue. You put it up. It's on your property. You're the only one that can be compelled by a court to take it down.

    HOA Issues:
    They approved this fence! 

    Then, if you lose the case, you might have a cause of action against the HOA for indemnification since you relied on their waiver of the CC&R limitations.

    HOA Issues:
    The paperwork I was served is from the Circut Court for the county I live in

    Then you have to file an answer or face the possibility of a default judgment. And you probably have to do it in the next few days.

    Here's a guide from the Maryland Circuit Court of Baltimore County about how to file an answer.

    http://www.smartrules.com/states/Maryland/Baltimore-Circuit/Answer-733-24-0.html

    You can probably find sample answers on the internet or at a law library.

    Drew raises a good question. Did you get written authorization from the HOA to build the fence based on first submitting your plans to the HOA? If you did then a possible defense to the lawsuit is that the HOA has the power to waive the requirements of the CC&Rs and that's what they did.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-04-2012 2:35 PM In reply to

    • Drew
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    Re: HOA / neighbor fence issue

    I'd not even address if HOA can waive its own rules--I'd start with HOA approved  it, date X/V/M

    Really, I'd start with good counsel!



  • 02-04-2012 2:44 PM In reply to

    • Drew
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    Re: HOA / neighbor fence issue

    How to answer even a simple question is best left to an expert--and most of the  so called statements  you post  do not require comment nor would one be smart to venture there.

    EG admitted, denied, admitted in part/denied in part,  Objection--cite a rule/reason

    ---It is an invalid assumption  or conclusion of law that one must follow every CC&R as written--and you don't venture any  guesses --you use attorney to craft answers.

     

     



  • 02-04-2012 8:39 PM In reply to

    • Drew
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    Re: HOA / neighbor fence issue

    Whether you neighbor is a big a liar as you post  doesn't really matter--its unsafe to just go chainsaw the  objectionable area of fence out--that doesn't extinguish the action--and he could get a default judgement  if you fail to get it properly terminated.  I think he picked a pretty stupid fight



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