Owners rights over property on a fence

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  #1  
Old 11-05-16, 09:37 PM
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Owners rights over property on a fence

Hi all! I am new here, so glad that there are legal gurus in the team!!
So, maybe somebody can tell me what to do here.
I have a 12 year old jazmin plant that started from a little plant pot and grew along the fence. I trained the vines in and out, and it became thick and strong. As the fence (all around) aged and rot in parts, this area looked and smelled great, full of white flowers for several months until July. Previous neighbors loved the plant and trained vines on their side too. Forward to 2 years ago. New tenants (well, they can be owners, will have to confirm) are messy, leaving kids toys and their items all over the front and backyard (in a neighborhood with strict HOA!), parking on my lawn and illegally too close to the corner (school bus driver had to call police several times to make car move in order to get through). They also do not mow or hire someone to. Don't care.
Well, a week before mother's day (this spring) I woke up to my chopped up jazmin on the ground, branches all over. No warnings, no complains, no questions asked. I live alone, this plant was a mother's day of my daughter when we bought our 1st house. Daughter had a tumor and is no longer here, so thus plant has great meaning. I was so devastated! Didn't bring it up, but tried to rescue the plant, retraining it, fertilizer, etc. on my side only, assuming that it bothered them on theirs. 50% of the plant survived, but a lot wimpier, thinner. I was planning on selling the house at the time, this did not make it look good at all! Abandoned plans for the time being.
Just 2 weeks ago, I worked in my yard till 8:00 pm. Again, when I woke up, found the plant on the ground. It was chopped much more, and this time the guy had to have climbed a ladder and leaned over my side to cut it so drastically, because there were no vines threaded to his side.
Didn't know what to make out of this. Who can be so cruel, and so mean intended?!? Again, no previous talk, no friction or additional problem, nothing. I've called neighbors to witness and help me pick it up. Now it is squalid, about 1/3 survived, most is dried. Again, I retrained it and added a support system on my side (hooks for the vines). I called the HOA, but in 2 weeks they have not come.

What are my rights over a plant that is rooted/planted on my side, and is growing on my side, and not causing any damage to anybody but it is embellishing a fence? And the emotional trauma caused? I leave near Houston, Texas. I own the house. Building is duplex, within a "planned community" with a strict HOA.

I also have a wooden patio right there, and the jazmin used to make a beautiful fragrant area to have breakfast. Right now is horrible, all falling apart. I am seriously afraid of these people, particularly because they sound schizophrenic: they'll greet me nicely as they arrive from church, and right in front of me park on my lawn! Or chop my own plant!
 

Last edited by Yeshecan; 11-05-16 at 10:49 PM. Reason: Add location
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  #2  
Old 11-06-16, 02:53 AM
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It sounds as if you are afraid to confront your new neighbors. If that is the case, don't expect anything to change. The HOA may or may not take action. Politely let the neighbor know that the plant is yours, on your side of the fence and you intend to keep it. Don't let it encroach on their side. Bottom line, you will need to face them one day, and tomorrow is a good one.
 
  #3  
Old 11-06-16, 02:57 AM
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Who owns the fence? Is it directly on the property line or on one side or the other?
 
  #4  
Old 11-06-16, 08:12 AM
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I think Mark asked the pertinent question - where is the property line in relation to all this?
 
  #5  
Old 11-06-16, 10:04 AM
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Also, you need to determine if they are actually the owners or perhaps renting. If renting then find the owner and explain what is happening.

Also, you need to talk to your local police department, especially if the HOA does not respond. Filing an information report with them will keep them informed as to your security concerns. The police do like to know what is going on.

A fence on a property line can often be a problem and in some jurisdictions there are special rules to help resolve neighborly problems. Check with your local code enforcement office to see what they can add.

Bud
 
  #6  
Old 11-06-16, 01:07 PM
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Before you do anything, as Mark suggested, determine where the property line is. Don't know anything about the rules of your housing complex, but this may require an instrument survey. If you are so inclined, you could check on the Real Estate laws of your town/state.
 
  #7  
Old 11-06-16, 01:34 PM
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@Marksr
Technically (of course I've not done an independent survey) the fence is owned by both, as it seats on the line. Should we have to repair it, we should split expense.
 
  #8  
Old 11-06-16, 01:39 PM
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That does create the problem that they may not like your Jasmin on their 50% of the fence. The HOA will definitely need to sort this out. Again, find out if they are owners or renters. HOA should know.

Bud
 
  #9  
Old 11-06-16, 01:40 PM
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Vines growing on a wood fence can shorten the fence's life. But I wouldn't think your neighbor could alter anything on your side of the fence. Have you discussed this with the HOA. They might have some leverage to help you ..... or cite a rule against the plant growing up the fence.
 
  #10  
Old 11-06-16, 01:46 PM
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(Wow, all these answers, thanks! Someone tell me why, if I subscribed to this thread, I got no notifications? Am I missing something? Newbie here... )
@Bud
Yea, as I wrote my post I realize I need to find out if they are tenants or owners.
Re. "Filing an information report with them will keep them informed as to your security concerns. The police do like to know what is going on."
Never heard of inf. report. Tell me more about it.
However, my concern if I go to the police often, is that I build a case against myself, a history of being an annoying, complaining neighbor. I've already made 2 calls to the non emergency number for their car over my lawn, and illegally parked to close to the corner (less than 20 feet)...
Telling police about something that they have no jurisdiction on (my backard) sounds OCD to me.
Thoughts?
 
  #11  
Old 11-06-16, 01:52 PM
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Never heard of inf. report. Tell me more about it.
The police keep a record of all calls concerning any given address. Multiple reports for one address get their attention. It works both ways. [offending party and the one reporting it]

Not sure why you didn't get notifications if you subscribed to the thread, maybe check your spam file ??
 
  #12  
Old 11-06-16, 02:08 PM
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Lack of notifications: no spam folder, I'm using my phone. But also here, in my profile, when I went to check for activity, it showed zero, so I had to go to each post and see. Glad I did, though :-)
Re. jazmin on his 50% of the fence: that's no longer an issue since April when he decimated the plant. This time it was on my side.
Re. Plant weakening the fence, as I said, fence is not great shape (I think we got borers at one point) in all 4 sides, nothing I can fix at this moment. But precisely because of it, the plant actually made it both attractive and strong, being as thick and stablished as it was. Now it is a brown shrub, you can totally see through it, and it lost all shape. Arghhhh!
Either way, regardless of his take on it, he should've discussed it first.
And now my concern is how to stop it.
As someone said here, yes, I'm rather non confrontational, particularly when dealing with irrational people -wouldn't you? But I'm no chicken, just wouldn't pick a fight I can't win.
I'm thinking of asking an attorney to send a stop and desist letter.
Anyone knows the real power/weight of these? Hate to spend the money, but I'm a petite gal, and I'm not about to walk up to this (big) man to kindly ask him to be human. Not empty handed.
The other idea I explored, since I used wire to create a new supporting system for the jazmin, was to plug it in. Yes, electric fence 😈. Don't even feel sorry, I had it!
 
  #13  
Old 11-06-16, 02:12 PM
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You might get in trouble with an electric fence especially if there aren't prominent signs indicating there is a risk of shock!

I'd see if the HOA would help before I'd pay for an attorney. One of the reasons for an HOA is to keep the neighborhood nice.
 
  #14  
Old 11-06-16, 02:14 PM
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How do you know that the fence is on the line and owned by both? Is this documented? Was there an agreement (written? oral?)with the other owner when the fence was installed? Who paid for the fence?
 
  #15  
Old 11-06-16, 02:19 PM
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Also, so you know, this neighborhood has its own regulations, design review committee, and police force.
We don't report to the county officials, so the law part is even grayer than it looked to you at first.
When my pet died, I had "no legal right" to bury her in my backyard.
If you want to paint the front (or back!) door another color, pay for a change application. In 4 months you will be told weather you are allowed or not.
I hear you: MOVE! but safety -before my saw-yielding neighbor came- is way better than any other area in 80 miles radius, education, etc. house has doubled value in 12 years, at the same time than many others around the country lost their homes due to the market... For the time being, I'm staying. Besides, till I resolved that eyesore, this won't sell well 😜
 
  #16  
Old 11-06-16, 02:26 PM
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This is a planned community with homes going fron $180,000 all the way to $20 million, all abiding by same extensively, infinitely, obscurely written rules.
These humble duplexes in particular were all built by one company; they were supposed to put the fence on the line, it is assumed they did. If we need to replace/repair, a new survey is used to make sure this stays true.
 
  #17  
Old 11-06-16, 04:20 PM
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If you are willing to spend $ on a lawyer, have the lawyer review your contract with the HOA/Community to see what your rights are. In so far as confronting your neighbor he seems to be very inconsiderate of his neighbor (you)....he sounds like a bully. Talk to your lawyer and then the HOA. If the HOA keeps blowing you off you could always contact the Consumer Protection Division of your Sate Attorney General's Office. They don't act in a legal capacity but might have better luck dealing with the Development Management/HOA.
 
  #18  
Old 11-06-16, 06:22 PM
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Thumbs up

@Jimmiem
Thank you (and everybody else) for your responses.
No, not a good time to spend extra money on anything, but a lawyer I needed once said there was some unused retainer $ left in the pot, to come back if I need him.
I'll have (eventually, it's been 2 weeks waiting for them) the HOA check the rules that apply, and see the before and after pics.
All of that is definitely good advice, will post outcome.
(If I don't post in two weeks, and I suddenly disappear from DIY, we chopped off my head!)
 
  #19  
Old 11-09-16, 05:26 PM
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Hi all! Just wanted to keep you posted.
I went to HOA and spoke with a rep, they said they'll take pics, use mine if better, and send a "reminder" letter about only pruning on their property when working on the yard. They'll also confirm if they are tenants or owners.
They were pretty supportive, but stressed that they cannot really enforce anything.
Suggestion? To instal security cameras. And then call police for trespassing -if caught. Arghhh!
 
  #20  
Old 11-09-16, 08:00 PM
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Typical. This is why I would NEVER own a home where there is a HOA. The rules are usually too restrictive for me AND the HOA more often than not is impotent to actually DO anything for the homeowner.

My sister lives in a small community that has an HOA, in fact, she ran (probably unopposed) for president and served two terms. Her area is fairly light on the CC&Rs but they still make no sense to me. Things like NO fences can be built UNLESS they are wood. NO changes may be made to the landscaping in the front yards without permission. Garage doors must be kept closed except when actually going into or out of the garage. Then one that DOES make sense, NO parking on the street. This makes sense because the streets are so narrow a fire truck would have trouble negotiating the way in case of an emergency.

But the garage door and the parking rules are routinely ignored. When Kate tried to enforce these rules she became the most hated person in the area. Of course the county should have NEVER allowed the sub-division to be built with so many homes and such narrow streets but that's a different issue. These lots are so small that they have at most ten feet between the sides and the back of the houses to the property line. They have only a single car garage, albeit a somewhat large one or maybe it just looks that way because she has a small car. The driveway is just large enough to park a second car and leave barely enough room to get the first car into or out of the garage, providing it IS a small car.

I've known other people that lived in HOA communities and they tell me that reporting infractions to the board is frustrating at the least and in most cases a waste of time. The MOST the board will do is to remind the offender that they are in violation of the rules. Since they are HOA rules and NOT laws, the police are powerless to act.

Then there are the HOAs that just LOVE to harass people. Like the one that is suing a man for displaying the US flag when his son in the military is deployed overseas. Many more things as well.
 
  #21  
Old 11-09-16, 10:07 PM
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Well, I think mine tops both, but with a larger driveway.
Fee is more than any bill, but they don't even mow the lawn.
Can't have more than 2 pets per house.
Can't cut your own tree (if too close to house, or street, or sick, or whatever)
Can't change paint color or material of anything.
Can't add a pergola or shed to the back.
Can't fix exterior on your own (or they drop that aspect of the home warranty)
But they CAN contract a roofer (and impose it on us) that posts their liability rules before coming to do the job, "company is not responsible for incidental, circumstantial, consequential or material damage caused anywhere in the property while performing the job"
(They left all vents unsealed and open, I got water damage and pests in the house)
 
  #22  
Old 11-10-16, 12:36 AM
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I'm with Furd. When I was young and dumb, 2 wives ago, we had a house built in VA in a place with a semi-HOA and covenants. 88 single family homes. By semi-HOA I mean they did absolutely no maintenance, color pallets, repairs, or anything but try to enforce the covenants. No pool, community areas, or tennis courts. After about a year or so of making the place our own, I decided to stick build a shed in the back corner under some trees and mostly out of sight.

After I had it framed on the slab foundation (not really required since it was just 10 x 10 and could have used skids and anchors), had the sheathing all up, windows in, door installed, etc, a guy walks in to my back yard while I'm doing the shingles. Said hello's and I said sorry I can't really come down too easily, can I help you. He said he was some officer with the HOA and wondered if I'd had the shed approved. I said, nope, I'm not a member. He said I had to be to own there. Told him I went to one meeting and saw it was just a coffee and donuts gab fest and never went back. Never paid any dues or anything (they were only like $5 or so a month).

Told him I got no benefit from the HOA and sure wasn't paying for coffee and donuts. He said, well, we're landscaping the grass (sorta) circle at the other end. (About 15-20 ft in diameter and not near the only entrance and exit to the development. Not even sure why it was there.)

I said, so I should help pay for something that maybe 5 or 6 houses can enjoy the view of? Not gonna happen. Then he said I still needed approval. I said, why don't you concern yourself more with those eyesores on the other 2 blocks? The ones with the set in place pre-built sheds. One rusty metal and the other un-maintained rough T-111 that was already starting to rot. Or maybe the places that were missing boards from the developers fence that isolated the community from the well trafficked road along side. My shed plans were checked by the city Building Dept even though it wasn't required. It has the same color vinyl siding as the house. The trim is painted the same as the house and it has 4 windows plus a picture window, all operable. It has a 4 x 10 ft porch on the front and storage in the "attic" for items up to 14' long. It has low voltage electric for normal lighting and an inlet for an interior outlet if I need 120V temporarily. So why don't you just carry yerself off my property since you are trespassing and if you still have a problem, take me to court. Never heard a word from them again.

Heard later that a doctor and a lawyer had moved in to a couple of the houses. Good friend next door had had a 16 x 24 garage built mostly behind his attached garage along with a driveway extension to reach it. Just store his hoarding stuff I think. Well, after it was all built, like 2 yrs later he got a similar visit and they said you need to plant some tall firs to help conceal it from the road. This was in the back of a cul-de-sac with all the original buyers! None of us cared since it actually helped with property values. Since he and his wife were getting on in years and looking at selling and retiring to their NC property, he just did it rather than fight with them or have a lien attached somehow. Guess sometime after that the doctor and lawyer got in a pi$$ing match about who was going to be in charge and they all took a vote to dissolve the HOA.

Never again, even as a now renter, would I live in such a place. If I hit the lotto, I'll buy something where you can't even hear your neighbors shooting in the backyard.

Boy, I'm writing books tonite. Sorry again for the semi-hijack.

As a real answer to some of your question, the plant has been hashed and rehashed. What hasn't been talked about much is them parking on your property. Is it really your property or communal? Of course the actual property line comes in to play here as well. If yours only, then that's trespassing and a criminal act. Maybe the police would be more interested in that? They could also be held civilly liable for any damage to the lawn or underlying items like sprinkler lines, invisible fence, etc. The police would need to see the vehicle parked on your property, they won't just take your word for it. Even pictures won't really help unless you go to court.
 
  #23  
Old 11-10-16, 03:34 AM
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I'll also jump on the anti HOA bandwagon
The main reason I wouldn't live with a HOA is I prefer living in a rural area and I won't, can't, ain't gonna live in a town or suburb ....... and you can't make me!

I have painted lots of houses covered by HOAs and am familiar with a lot of their restrictions. While some make sense for the community, many are just too restrictive. I can see having a landlord tell you what you can/can't do but I can't see being told the same thing at your own property.

Glad the HOA is taking your side even if what they do is limited. A security camera is always nice to have, a trail camera might be cheaper.
 
  #24  
Old 11-10-16, 06:05 AM
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@marksr
What's a trail camera?
Will it record stuff so I can have proof?
 
  #25  
Old 11-10-16, 06:45 AM
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I also hate HOA. Too restrictive. Besides local communities have minimum requirements that can be enforced to maintain standards.

My advice to the OP: Be polite but firm. You will not stand for encroachment on your property. You will report to both the HOA and the local authorities. Your mistake was not making the "rules" when they first came on the scene.

My first house bordered on a field owned by the the neighbor behind me. An old guy. As soon as I moved in he came to me and in no uncertain terms made it clear that the field was off limits to kids, no garbage or dumping and he expected my cooperation to keep it clean. We got on fabulously. So much so that several years later he wanted me to buy the land from him because he was sure I would keep it clean. I declined and moved shortly thereafter.
 
  #26  
Old 11-10-16, 09:15 AM
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A trail camera is a battery operated camera used by hunters to scope out an area ahead of time. If I'm not mistaken some can be viewed on the camera while others need to be viewed on a pc. Should be cheaper than using a regular security camera that needs to be hooked up to a recording device.
 
  #27  
Old 11-10-16, 09:44 AM
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Just googled trail cameras and there is a page full. Here is a some from Bass Pro
Trail Cameras & Camera Accessories | Bass Pro Shops
 
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