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Ask Attyadvisor Your Own Question
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7210
Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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I have a question about an HOA's ability to take a fence on

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Good day. I have a question about an HOA's ability to take a fence on a common servitude (subdivision boundary) and require the lot owner to maintain it given the fence was erected by the developer and has been maintained by the Association as a common element for 20 years.
JA: Was the structure crossing the property line built on an easement or a public right of way?
Customer: Not a right of way, the plat refers to it as a "common servitude". The fence serves as a boundary (separator) of the subdivision and another adjoining property.
JA: Where is the property located?
Customer: 417 Hidden Lake Ct, Baton Rouge, LA
JA: Anything else you want the lawyer to know before I connect you?
Customer: Is there a charge for this basic inquiry?
JA: You just pay a $5 deposit now and the rest only when you get a reply from the Real Estate Lawyer. All of this is 100% satisfaction guaranteed, so you can get a refund if you're not happy for any reason.
Customer: What would the "rest" be?

Welcome and thank you for your question. I will be the professional that will be assisting you.

There are governing documents that set out the rules that govern the HOA. They are considered a contract between the owners and the Association. Do you have a copy of your governing documents? There are certain areas that are referred to as limited common elements that can require an owner to maintain an area such as a fence. We want to see your HOA governing documents require this.

Customer: replied 2 months ago.
I am a lot owner with a fence located on one side of my lot and the HOA has maintained this fence for 20 plus years. The fence rests on what is referred to as a common servitude. The developer erected fence when the subdivision was first constructed. Can the HOA transfer maintenance responsibility of the fence to me now?The governing documents are brief and not what I would describe as fully developed in this area. The only mention of the common servitude is the documents specifically state the HOA can transfer common servitudes to public entities - local government, utility, etc.
Customer: replied 2 months ago.
I do not have a copy of the documents available to me at this time. The HOA is Hidden Lake Court HOA in Baton Rouge, LA.
Customer: replied 2 months ago.
Are you still there?

The Board has the ability to amend maintenance requirements for limited common areas/servitudes BUT they can only do so through the proper amendment process as set out in the the governing documents. How many other owners have use of the fence?

Customer: replied 2 months ago.
No other owners have use / benefit of the fence. The documents only describe "a majority" of lot owners needed to amend the documents. It does not specify a majority of all lot owners of record, quorum of those attending a meeting, etc. Not specific.

Can you attach the documents?

Customer: replied 2 months ago.
Wish I could, but do not have a copy with me at this time.

No worries. The Association only has the power to change the rules as set out in the governing documents or by Statute. I can try to look up your HOA. What is the full name of the HOA?

Customer: replied 2 months ago.
Hidden Lake Court HOA.You have been helpful. Would I be correct in thinking that the HOA may indeed have the ability (through amendment) to make me responsible for maintaining this fence? I am struggling to understand how that is possible when I did not choose to erect the fence, the design or composition of the fence, and the HOA has historically set a precedent of maintaining the fence.

They can amend. The power lies in the governing documents (which is a contract) providing an amendment process. That being said, if this requires a vote of the owners, they need to go through the process. You can certainly object and if asking you to maintain the fence is unreasonable you have an action against the HOA. Amendments must be reasonable and serve a legitimate purpose.

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out. Thank you for your consideration.

There should be a rating scale on your end. Let me know if you are unable to see the scale. Thank you.

Attyadvisor and other Real Estate Law Specialists are ready to help you
Customer: replied 2 months ago.
Reasonable and legitimate purpose? A few of the lot owners (homeowners) in the HOA just "don't want to be bothered with the fence". Does that constitute reasonable and serve a legitimate purpose?

I knew you were going to ask me that question. The HOA has certain responsibilities they need to have a reason to amend governing documents that is in the best interests of all owners.

Customer: replied 2 months ago.
I had to go there. The question is this in the interest of all homeowners? Not me of course. This creates a new hardship for me theoretically.

Yes, I completely understand.

Customer: replied 2 months ago.
if the HOA votes to change this, I am stuck? I can contest it, but may not win on the face of the argument? If the HOA does transfer maintenance to me, can the HOA dictate the conditions of maintenance - color, condition, etc?

If you can find your copy of the governing documents they should set out what the HOA can require. As a general rule the governments can set out conditions of maintenance as well as color and condition. "Dictate" is the perfect word.

Customer: replied 2 months ago.
Thank you, ***** ***** has been helpful. I am struggling with the HOA's authority to make me responsible for a fence I did not create and how it is maintained. I purchased the property with the HOA having always maintained that.

We all struggle with HOA powers. They were great in theory and are horrible in practice. They are dictatorships.

Customer: replied 2 months ago.
Okay, thank you.

You are most welcome.

I can also provide a link for local Attorneys in your area that provide FREE consultations if that would be helpful?