The answer may depend, at least in part, on how the “assignment” was done (including mention of access for maintenance purposes). If this is stated in the Governing Documents (Declaration or Bylaws or Rules/Regulations), then it governs, the owners are bound by it, and the Board should enforce it. If, however, it was not part of the Governing Documents, then there might be a problem with enforcement. If the latter is the situation, then the Board should enact a Rule going forward to deal with this (or, preferably, get the Declaration or Bylaws amended to deal with it).
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
Without looking at the documents and the Plat, it is not possible to ascertain where the responsibility lies and whether the Association had the authority to “assign” the responsibility. I would recommend that the association consult their legal counsel.
Thrasher Buschmann & Voelkel, P.C.
151 N Delaware St #1900
Indianapolis, IN 46204
Not necessarily. If your governing documents contain an easement allowing owners to access neighboring properties when necessary to repair their property, you should be ok.
But if the governing documents do not contain such a right and the resolution or document making the “assignment” did not consider and account for entry, you make have to make an adjustment to the document.
I cannot credit the “We can’t be forced to access someone else’s property, and therefore we cannot be caused to maintain the opposite side of the fence” defense does hold water. While I am not familiar with the document that assigned the maintenance responsibility to the Unit Owner, it seems to me that the responsibility to maintain property, even if not on one’s Lot, should be on par with the obligation to maintain your own property.
Thus, there is likely an easement permitting access to neighboring properties in order to maintain those things that are within your sphere of control and have become your obligation to maintain.
Imagine if the Association took this position as to roofs in a homeowners association, in which the unit owners own the roofs but the Association has the obligation to maintain them. Under the objector’s theory, the Association would not be able to replace a roof because the roof would be part of the lot owner’s unit.
The unique thing about homeowner and condominium housing is that often maintenance obligations are separated from ownership obligations. This is an example.
Robert C. Griffin, Esq.
Griffin Alexander, P.C.
415 Route 10, 2nd Floor
Randolph, New Jersey 07869
It would be extremely important in this instance to review the language of the covenant or rule/regulation which created this arrangement and imposed the maintenance requirement necessitating that an owner traverse onto his/her neighbor’s property. Are there any easements involved that apply to the fences? Are these fee simple lots, or are the yards and fences considered common area, the use of which can be governed by the Association without consent of the property owner? If the adjacent yards are private property belonging to the owners right up to the property line that separates the neighbors, and if there are no easements, then I think there could be problems with enforceability of this rule if it were to be challenged legally; and at the very least some clarification of the policy may be needed. Also keep in mind that under the new SC HOA Act effective May 17, 2018, any governing documents not currently recorded, including but not limited to Rules and Regs, must be recorded by January 10, 2019 or the document will not longer be enforceable after that date.
Sean A. O’Connor
Finkel Law Firm LLC
4000 Faber Place Drive, Suite 450
North Charleston, South Carolina 29405
Direct Dial 843.576.6304
The first thing I would want to make sure of is how the fences were “assigned” to one Owner or another. If we are talking about ownership, that would have required some sort of deed or conveyance to formalize the “assignment.” If we are talking only about maintenance obligation for them, we would still need to know whether the fences were owned by individual members of the community, or whether they were considered common elements of some sort, including limited common elements. Typically the obligation for party walls, which may include a fence, is explained in the Declaration. If it is, then that should be the starting point. If not then basic principles regarding party walls may apply. To really get to the bottom of this we would need to see what was done to “assign” these rights and obligations. If it was not something involving amendment to the Declaration then the one homeowner who is objecting may be correct-that he can’t be forced to do anything. If it turns out that normal obligations regarding party walls apply, then both owners share responsibility and one has a claim against the other for any expenses used in maintaining the fences. This does not sound like it was approached correctly by the Association and it may need adjusting to do to properly but it would require looking at the community documents to be sure.
David C. Wilson
Black, Slaughter & Black , P.A.
1927 S. Tryon St., Suite 100
Charlotte, NC 28203