HOA is Refusing to Repair Fence Built in Easement, in Texas

[smackdaddy11]

Great place. My HOA is trying to have individuals maintain fences built in easements plainly listed on the plats, surveys and deeds (one section in a wall easement and another in a drainage easement). We live in a PUD.

They rec'd an atty opinion that says the individuals "are responsible for maintenance" but at the HOA meeting the atty admitted not even examining the plats surveys or deeds.

Now they want to have a "vote" on something that can't be changed by a vote. The CCR states all easements "run with the land" and the deed from the developer to the HOA states ALL easements are the HOA's.

My question is how can I get this resolved with as little financial penaly to our HOA. For 15 yrs. it's been great. The Board is trying to do this and guess what, they don't personally have any of the fencing in question and have riled up the neighbors who don't have any either.

We called the city code compliance dept to examine the section in need of repair. Will they be able to get it done on their own and notify the HOA and mgmt co of their obligation?

Thanks

[LandSurveyor]

Now they want to have a "vote" on something that can't be changed by a vote.

If they are planning to vote about abandoning and vacating the easement or easements, they probably have every right to do that, unilaterally.

Are you assuming that because a fence is in an easement owned by the HOA that they and not the adjoiners are responsible for maintenance? You and your neighbor own the property under the fence. Wall and drainage easements have nothing to do with fences.

Most HOA's are only responsible for "common areas" shown on the PUD plat.

[smackdaddy11]

If they are planning to vote about abandoning and vacating the easement or easements, they probably have every right to do that, unilaterally

Thanks for the response.

The CCR states the easements run with the land. Abandonment must show "non use". The HOA has done maintenance on these for years. The fence is within the easement pins. The developer put the fence here because the concrete improvement didn't use all the land and he then put the fence in so he didn't have ot create a "wall easement" on the property of the individuals. Most of the fence is built 2-3 feet beyond the property lines of the homeowners (according to their surveys). A section of fence is acually on the opposite side of the concrete ditch 2' from the PUD property line. Accoring to the deed from the developer to the HOA, the HOA is responsible for maintaing "all easements and improvements thereto" and the easements are listed on the master plats. The HOA is paying to clean the drainage easement in the next month, but doesn't want to repair the fence built within the platted easement pins.

Does this info help?

Thanks again

[LandSurveyor]

Let me be more concise.

If the HOA votes to vacate the easements, there is very little or nothing which you can do to make them retain the easements. It doesn't matter that the easements run with the land. Most do.

The "abandonment" clause refers to an entirely different situation, where the HOA fails to use/maintain the easement and you want to have it extinguished.

I don't have your HOA agreements in front of me, so I am at a disadvantage. But I live in a PUD with an HOA dating from 1962. The HOA has broad powers to do many things, including vacating platted easements, which has been done.

[smackdaddy11]

I don't have your HOA agreements in front of me, so I am at a disadvantage.

I agree and I appreciate your information.

If the HOA votes to vacate the easements, there is very little or nothing which you can do to make them retain the easements. It doesn't matter that the easements run with the land. Most do.

However, the word "improvements" is in the CCR and the fences are improvements to the property by definition. The CCR plainly states the HOA is responsible for all improvements in the neighborhood.

For help, here is the common area definition:

"Common Area(s)" shall mean all real property(including the improvements thereto) leased, owned or maintained by the Owners' Association for the commom use and enjoyment of the property owners within the Subdivision. By way of illustration, Common Area(s) may include, but not necessarily be limited to, the following: private streets, sewage systems, signs, street medians, entry gates, guardhouse, tennis courts, recreation area(s), playgrounds, landscaping, lighting, entrance signs, walls, bridges, trails, greenbetls, other similar or appurtenant improvements and any other common area improvements.


To vacate, like your saying, would be to teminate the drainage easement. In the CCR, the drainage easement may be dedicated to a governmnet entity but since we are in a PUD, the city wouldn't take it. The HOA is spending 5K to have the drainage easement cleaned but is refusing to repair the legally constructed in within the platted property lines. Legally, how can an HOA make individuals maintain a drainage easement that they have no deed to it? The fence in question is built next to the actual concrete "improvement" but within the pins of the platted easement.

The CCR uses the word "walls" as an item the HOA is to maintain in the Common Area definitions. Here is dictionary.com definition of a wall:

wall   /wɔl/ Show Spelled[wawl] Show IPA
–noun
1.any of various permanent upright constructions having a length much greater than the thickness and presenting a continuous surface except where pierced by doors, windows, etc.: used for shelter, protection, or privacy, or to subdivide interior space, to support floors, roofs, or the like, to retain earth, to fence in an area, etc.

Sure looks like an 8' cedar fence meets this definition.

The HOA has broad powers to do many things, including vacating platted easements, which has been done.

The "vote" the HOA seems to think they can take is not a vote to vacate an easement, it wa a vote to make individuals responsible for a fence not on their property. Trust me, this board would have worded it this way if they legally could of. They know they are behind the 8 ball legally. I'm just trying to resolve this the best way I can to prevent a major legal issue the board (and the HOA funds) would lose bad in court.

Thanks

[hjinc]

A lot of people confuse easements, right-of-ways, and commons area. By definition, an easement is simply the right to access someone else's property. Right of way is generally raod and land along the roadway owned and maintained by local or state government and common area is property owned and maintained by the HOA. I think you are taking the rules in the CCR in reference to "common area" and applying it to an "easement", which are not the same. The property owner still owns and maintains the property and everything within an easement (except utilities). The easement just gives an entity access to the easement, generally to run utilities or for access to another property. Often HOAs and homeowners often confuse and misunderstand their maintenance responsibility with things of this nature.

[smackdaddy11]

A lot of people confuse easements, right-of-ways, and commons area. By definition, an easement is simply the right to access someone else's property. Right of way is generally raod and land along the roadway owned and maintained by local or state government and common area is property owned and maintained by the HOA. I think you are taking the rules in the CCR in reference to "common area" and applying it to an "easement", which are not the same. The property owner still owns and maintains the property and everything within an easement (except utilities). The easement just gives an entity access to the easement, generally to run utilities or for access to another property. Often HOAs and homeowners often confuse and misunderstand their maintenance responsibility with things of this nature.

The original developer deeded all property he owns to the HOA when he turned over control of the development. One plat shows a "2' wall easement" running across the back of my property. There is an 8' fence within this easement and my deed states plainly that I recognize all easements crossing my property and I don't own the property within those easements. All I own is the top of the ground. How can I be responsible for something I never built and my deed says the property within said easement isn't mine?

The other section, the fence is built within the platted drainage easement pins that was also deeded to the HOA directly. All property surveys show this fence not on the individual lots but within the drainafe easement the HOA just pd 4 digits to clean. How can an HOA make individuals maintain property built within their deeded property?

Thx

[hjinc]

The original developer deeded all property he owns to the HOA when he turned over control of the development. One plat shows a "2' wall easement" running across the back of my property. There is an 8' fence within this easement and my deed states plainly that I recognize all easements crossing my property and I don't own the property within those easements. All I own is the top of the ground. How can I be responsible for something I never built and my deed says the property within said easement isn't mine?

The other section, the fence is built within the platted drainage easement pins that was also deeded to the HOA directly. All property surveys show this fence not on the individual lots but within the drainafe easement the HOA just pd 4 digits to clean. How can an HOA make individuals maintain property built within their deeded property?

Thx

Without having your deed in front of me, I find it hard to believe that your deed says explicitly or implicitly that you do not OWN the property within the easement. If you didn't own it, there would be no need for an easement, it would simply be deeded as common area/property owned by the homeowners association. What I can share with you is my experience in dealing with issues of a similar nature as someone who works for a local municipality and one of the most commons misconceptions or least understood issues is the maintenance of areas within easements. I'm not even saying that the intent when the development was built wasn't for the HOA to maintain ALL fences, but if the fence is within your deeded property (even if it's within an easement), then it's my opinion that you are responsible for it. The common area that is referenced in the CCR refers to land owned by the homeowner association outright or maintained (typically street right away near entrances).

[smackdaddy11]

I find it hard to believe that your deed says explicitly or implicitly that you do not OWN the property within the easement. If you didn't own it, there would be no need for an easement, it would simply be deeded as common area/property owned by the homeowners association.

The developer created the easements so he could build the fence across individually sold property. Without it, the individuals could do whatever they wanted with the fence. Tear it down, paint it periwinkle, etc...

The deed states ( I bought the lot straight from the developer)

This conveyance is made and accepted subject to (a) the terms, conditions and covenants set forth in exibit "A" attatched hereto and incorporated herein for all purposes and (b) any and all other conditions, covenants, easements and restrictions, if any, relating to the property, to the extent, and only to the extent, that the same may still be in force and effect, shown of record at the office of the County Clerk of ************ County....

The easemnts are on the official plat recorded at the office. They are also on my survey.

Exibit A above states;

(b) Any and ALL easements, restrictive covenants or other encumbrances which do not have a material or adverse affect on the utilization or value of the Property, including without limitation, (1) the easements, set back lines and other matters shown or to be shown on the plat of the Property or to be shown on any amendmentof the plat to be recorded in the Deed and Plat records of *********** County

The fence is a gated community border fence separating us from a business park. Do you think the owner and his giant pile of scrap metal on the other side of the fence would efffect my value?

Thx

[hjinc]

The developer created the easements so he could build the fence across individually sold property. Without it, the individuals could do whatever they wanted with the fence. Tear it down, paint it periwinkle, etc...

The deed states ( I bought the lot straight from the developer)

This conveyance is made and accepted subject to (a) the terms, conditions and covenants set forth in exibit "A" attatched hereto and incorporated herein for all purposes and (b) any and all other conditions, covenants, easements and restrictions, if any, relating to the property, to the extent, and only to the extent, that the same may still be in force and effect, shown of record at the office of the County Clerk of ************ County....

The easemnts are on the official plat recorded at the office. They are also on my survey.

Exibit A above states;

(b) Any and ALL easements, restrictive covenants or other encumbrances which do not have a material or adverse affect on the utilization or value of the Property, including without limitation, (1) the easements, set back lines and other matters shown or to be shown on the plat of the Property or to be shown on any amendmentof the plat to be recorded in the Deed and Plat records of *********** County

The fence is a gated community border fence separating us from a business park. Do you think the owner and his giant pile of scrap metal on the other side of the fence would efffect my value?

Thx

Again, I don't know if you're misunderstanding what I'm saying. I understand and recognize there IS AN EASEMENT, but no easement CANCELS your ownership of that portion of land. In reading your deed, it doesn't say you don't own the land within an easement, it only says you're bound by the conditions of the easement. And since you own the land under which the fence is erected, then you by default are responsible for the fence.

I guess what's really questionable is what specifically does the easement call for (legally recorded) and not what was it INTENDED for. You mentioned something about a drainage easement and that's definitely common, but what isn't common is an easement created EXCLUSIVELY for a fence. The reason being is the property owner typically dictates the access onto their property. If the intent was to create this fenced boundary/buffer between the development and adjacent business park, then the development should have been platted with a buffer/greenspace/common space area on which a fence could have been installed.

I guess what I can conclude from the information you've provided is that the DEVELOPER improperly created what he thought was a buffer and left the HOA and homeowners to figure out how and who should maintain it. It's possible the developer could have realized after the development was platted that this fence needed to be put up and not knowing or realizing the potential issues that would arise about "ownership" of the fence, thought creating an easement was a legitimate solution and the easiest route to go.

But the reason I think the property owner is ultimately going to be stuck with the maintenance of these fences is because (like someone eluded), the HOA can simply abandon the easement to prevent any question about who's responsible for maintaining the fence.