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Why *wouldn't* we want a legal agreement for a shared fence w/neighbor?
October 5, 2010 3:06 PM   Subscribe

Please help me figure out if I'm being unreasonable to want more than a "handshake agreement" between my condo association and our neighbor to have that neighbor a) build a fence that b) straddles our two properties and c) wants us to pay 1/2 of the construction costs for, and that d) we'd "co-own and maintain." Condo drama inside.

I'll try to keep it short:

- my condo has a long driveway that used to have a fence next to it to separate our property and our neighbor's (ON's).

- fence fell apart and basically crumbled a couple of years ago. We need a fence there because there's a drop off and if someone dumped off our driveway into ON's yard they'd likely get hurt.

- old fence was, apparently, built straddling the two properties somewhere (I think one end was in ours, one end in ON's). There was no documentation of its building, no easement, nothing.

- ON and my HOA talk, decide that ON will build another fence (he's a contractor) in the same place. He asks that we pay "half - it'll cost $2000."

- HOA comes to owners with this, some of us say "where's the legal agreement about the payment and about the fact that it's going to be on both properties?"

- HOA says there doesn't need to be one, let's just shake on it, we need the fence and he's cutting us a great deal, we'll just co-own and co-maintain it and everything will be peachy.

- let me reiterate - NO LEGAL/FORMAL AGREEMENT ON PAPER

- some owners insist on one, we draw one up, seems reasonable to us non-lawyers, present it to ON

- ON won't sign it. Doesn't feel like it's "necessary". He says - Let's just shake on it, it's a simple fence, no big deal. A formal agreement seems like just too much.

I am completely, 100% baffled why we wouldn't want/need a formal agreement in place. HOA says it's just "not a big deal!" They must be high, because I see: co-ownership of structure on two properties, liability insurance issues, shared maintenance issues, cost of building issues ("oh, did I say $2k? I meant $4k"), etc etc etc etc..... this seems so reckless I can't even begin, and the HOA board is literally saying "wow, guys, this is just a simple fence, why go all formal?"

So, who's crazy - me or the HOA?
posted by tristeza to Law & Government (38 answers total) 2 users marked this as a favorite
 
Oh, and the HOA currently does not have a lawyer retained. They also refuse to consult a lawyer on this matter in the first place.
posted by tristeza at 3:09 PM on October 5, 2010


it's crazy enough that i'm thinking the HOA is getting something out of it that you don't know about. this should absolutely be on paper with signatures and duties and fees and responsibilities.
posted by nadawi at 3:12 PM on October 5, 2010 [9 favorites]


And the ON moves out and the newON says "what's this fence doing on my property" and "I'm not paying to maintain it" and you do what? Oh yeah, you show him the hand you shook with.
posted by leafwoman at 3:14 PM on October 5, 2010 [12 favorites]


The HOA is crazy. IMO, this is worth going to the mattresses.
posted by cyndigo at 3:15 PM on October 5, 2010 [1 favorite]


You go all formal because it isn't a friendly handshake deal between two people, it's a deal between one neighbor, who is also a professional at the task he is about to do, and a number of people masquerading as one legal entity.

There are any number of possible conflicts of interest here. That is why you want it in writing. Not because good fences make good neighbors, but because when two neighbors directly engage in a deal, both lose if something goes sour. You need a neutral third party.
posted by mikeh at 3:17 PM on October 5, 2010 [2 favorites]


I'm with nadawi here:* Sometimes a handshake is just a handshake, but the HOA's weird insistence that there not be a legal agreement involved makes me wonder whether this handshake is concealing a kickback. Stand your ground.

*(I am also temperamentally inclined to suspicion in general)
posted by AkzidenzGrotesk at 3:20 PM on October 5, 2010 [2 favorites]


Based on what you wrote above the fold, it's totally rational and legit to want all these agreements in writing. Anyone being difficult about putting it in writing should be a raised flag.

After reading the inside details, I'd be wondering what short of side deal the HOA or specific members of its board are getting.

Get it all in writing or no deal.
posted by nomadicink at 3:20 PM on October 5, 2010 [1 favorite]


And then someone wants to buy your property, and asks about the fence and their obligations, and you have bugger-all to show them.

I have dealt with a person who believed in handshake-friendliness in real estate transactions. My voice still goes kind of high and squeaky when I talk about it.

Seriously, how long is this freaking fence? $2000 seems awfully high, and the right to shop around the bids on something you're going to be paying half of has been denied you. Maybe I don't know about fences! Maybe I'm just a declasse' girl who thinks chain-link looks just fine and your HOA doesn't agree.

What does "we'll co-own and maintain it" even MEAN? How do you co-maintain a fence with your (contractor) neighbor? Wait, don't tell me -- it means he does the maintenance and sends you a bill when he pleases.

Good fences make good neighbors. Good contracts make good fences. A contract is a written set of mutual expectations, and it's often in the writing of the contract that you realize that expectations are awry.

If your HOA board thinks "it's just a simple fence", they are too naive to be sitting on an HOA board. Fence wars are freaking legendary.
posted by endless_forms at 3:25 PM on October 5, 2010 [8 favorites]


Nthing the suspicion that the contractor is a cousin of the HOA's director. Get it in writing.
posted by benzenedream at 3:26 PM on October 5, 2010


Run for your life. Never accept this deal.

I had a pair of owner's sons sit in my condo and promise, while crying [actual tears] over the fact all our parents get old, to pay back the costs I incurred fighting their mother's lame installation of a stair elevator in my shared stairway in complete violation of the condo rules. They leave, the suns goes down, Mom dies that night and they develop a sudden case of amnesia and refuse to pay a dime.

We shook hands too.

Get it in Writing, take photos of the old fence line and the installation of the new one, have a motion passed in the board meeting to the effect this is happening, get any and all permits, protect yourself at all costs.

BTW if the condo rules are like those I know of, why is this section of common area your problem to fence anyway, who insures it? If the condo assocation does you might not even be allowed to build on it, call the insurance carrier.

Can 'o' worms doesn't begin to cover this one.
posted by Freedomboy at 3:28 PM on October 5, 2010 [1 favorite]


PS - I truly, honestly think that the HOA isn't "getting' anything - there's nothing to "get." I do, however believe that they are frighteningly naive and obstinate. The ON could well be scheming, I think he's a douche (just MHO).
posted by tristeza at 3:31 PM on October 5, 2010


I, like many people, currently live in a house with fences between my garden and my next-door neighbours' gardens. I'm not aware of any written agreement regarding fence co-ownership. I just keep my side painted and they keep their side painted. Are written agreements on this a common thing?

A written contract with my neighbours would have two functions (that I can think of). Firstly, to make sure we were on the same page about our responsibilities, and second to wave around in court if we decided to sue one another. We're already on the same page about our responsibilities. I'm not planning to sue my neighbours as that would not help our neighbourly relations, and if they for some reason weren't painting their side of the fence, it would be cheaper for me to paint their side myself than for me to hire a lawyer to sue them.

As to a contract for the construction, I don't know because I've never hired a builder to build a fence. But if the builder has good references, other builders have given similar quotes, and the HOA isn't paying until the work is completed, is there all that much that can go wrong?
posted by Mike1024 at 3:37 PM on October 5, 2010 [3 favorites]


Mike1024 has a good point - fences are generally considered to be a joint responsibility, and mostly that understanding works.

However I'd turn the question back on the ON and the HOA - why do they not want a written agreement? You've written it yourself, it's not like anyone is incurring massive legal costs. And it benefits everyone when either you or ON sells.

It may not be strictly necessary, but I can't think of a good reason not to do it.
posted by finding.perdita at 3:44 PM on October 5, 2010


Your association is nuts.

I'd also suggest you look at your HOA rules to see what they say about expenditures. Is it acceptable for them to spend this money without a bid or receipt? I don't see how they can even pay this fellow unless he bills them.

As far as where the fence is on your property and his, absolutely you should have this documented. You're in adverse possession territory here when you divide properties and don't properly follow the actual property line.

Your neighbor may not want to sign this document because this might not be kosher to do in your area without a site survey and/or a permit. If he knows that should be done then he may not want his name and signature on a document proving he knew perfectly well he should have been doing this.

I'd put my foot down and, if overridden, go to the next HOA meeting and make a statement into the minutes protesting this half-assed measure.
posted by phearlez at 3:48 PM on October 5, 2010


First, I wouldn't trust an agreement drafted by anyone other than a licensed attorney. You don't know the requirements for contracts in your state, and neither do I.

So I'll go a little bit onto the other side, insofar as it seems very easy here to spend more money having a lawyer draft the document than is at stake here. I mean, it wouldn't really make sense to spend $2300 to secure a $2000 interest, would it?

That said, it makes much more sense for the condo association to just pay someone the full price to put up a fence that's entirely on the condo's property. That way you don't have to worry about a future owner of the house tearing down the portion of the fence on their property.
posted by ROU_Xenophobe at 3:49 PM on October 5, 2010


Get it in writing, especially if the one proposing the deal says it's no big deal. Seconding the suspicions of cost overruns, arbitrary invoices for 'maintenance' and every other semi-sloppy contractor deal possible. Your HOA is far too naive. Well-meaning, ethical contractors do not insist on handshake deals with anyone, much less an assortment of people acting as an entity on behalf of others. How do any of you know what kind of 'deal' he is giving you? This is not acceptable.

You can always counter with an offer of building the fence with your choice of contractor and the neighbor signing your contract to pay his half. I rather suspect your neighbor plans to get his money up front and work on the fence as it suits him. No completion date, no arrangement about cost overruns, etc.
posted by Anitanola at 3:55 PM on October 5, 2010


Is it possible that the fence might be going on a "limited common area" which could make it the HOA's complete responsibility to install and maintain? If that's the case, perhaps the BOD would prefer to "overlook" an improper installation of a fence by the two homeowners who will benefit from the fence and will pay for it themselves, instead of putting the cost of the fence on every homeowner in the HOA. A handshake deal with no documentation could provide plausible deniability if someone else made a stink about it down the road. I can see how letting the two homeowners work it out between themselves would seem fair, but your HOA's governing documents may require it to be handled differently. If I were you I'd check to make sure the fence is even your and your neighbor's responsibility at all, and not the HOA's.
posted by Balonious Assault at 3:59 PM on October 5, 2010


If that's the case, perhaps the BOD would prefer to "overlook" an improper installation of a fence by the two homeowners who will benefit from the fence and will pay for it themselves, instead of putting the cost of the fence on every homeowner in the HOA

To be clear, the entire HOA will pay for it - so, all owners in my building will split our building's cost evenly among the 8 owners.
posted by tristeza at 4:04 PM on October 5, 2010


...and the right to shop around the bids on something you're going to be paying half of has been denied you.

Get an agreement. And prior to such be sure that you let the neighbor and the HOA know that you want a few other bids, so as to gauge the costs, etc. Don't let them "railroad" you into relying on the neighbor as being the best, most qualified to install the fence.
posted by ericb at 4:26 PM on October 5, 2010 [1 favorite]


We need a fence there because there's a drop off and if someone dumped off our driveway into ON's yard they'd likely get hurt.

Hypothetical: a visitor exiting your driveway loses control, crashes through the brand new, beatiful and "improved" fence and "dumps off" in to ON's yard. Who's responsible from a liabilty perspective? You? The HOA? The neighbor who built it? YOU NEED EVERYTHING IN WRITING!
posted by ericb at 4:30 PM on October 5, 2010


I'm sorry. I misunderstood who would be splitting the costs with whom. Do I understand correctly that neighbor/contractor will pay half and the HOA (or your building) will pay the other half? If so, why on earth would neighbor only ask to be reuimbursed half of the cost? Perhaps he's factoring in ridiculous labor charges, it's only going to cost him a few hundred dollars in materials and a day of work, and he'll still make a tidy profit if he snookers the BOD into a "half price" agreement.

Even if neighbor is not playing games, I could see why he wouldn't want to sign an agreement that might open him up to liability down the road if, for example, some kid injures himself climbing on the fence or a car crashes through it.

In any case I'd question whether ownership of the fence, liability, and maintenance concern the individual homeowners at all. In many cases (but maybe not yours) individual homeowner responsibility ends at the interior walls of their condos and the rest is on the HOA.
posted by Balonious Assault at 4:34 PM on October 5, 2010


I'd put my foot down and, if overridden, go to the next HOA meeting and make a statement into the minutes protesting this half-assed measure.

Exactly. Be sure to document your communication with NO and the HOA from this point forward regarding this situation. Seriously, do such by way of e-mail, memo, etc. You want to/need to protect yourself, as well as record their stance/responses to your concerns vis-a-vis this situation.

To be clear, the entire HOA will pay for it - so, all owners in my building will split our building's cost evenly among the 8 owners.

Why are you the 'point person' in this situation? I suggest getting all 8 condo owners in your building to agree to provide a united front on this situation: "We want other bids. We want everything in writing and a legal contract drawn up."
posted by ericb at 4:38 PM on October 5, 2010


In many cases (but maybe not yours) individual homeowner responsibility ends at the interior walls of their condos and the rest is on the HOA.

Very good point! Check into your condo and HOA agreements.
posted by ericb at 4:40 PM on October 5, 2010 [1 favorite]


There are a couple of unaddressed issues so far. First of all, at least in the US, local ordinances may vary or not exist -- but in general (and don't go to court on my say-so here) a fence that is exactly on the property line is owned jointly by both parties. In order to have a fence that is owned by only one of those parties, generally there must be a setback from the property line.

The flip side of this is that any agreement about a fence on the boundary might be legally null and void -- or unenforceable, which is much the same thing -- if it violates local laws.

Finally, on this aspect, there's just very little consistency about how this sort of thing should be handled. In a lot of cases you might have to pay for a fence installation and/or repair and have no real recourse other than small claims court and a judgement if your neighbor isn't interested in paying. It's a minefield, in other words.

For that reason my strictly non-legal advice is: avoid a shared fence where there is an alternative.

The other issue is that when you do build a fence, you need to be absolutely sure where you're building it. You need a survey, in other words. If you cross over the line with any part of the fence, it could conceivably be demolished without any legal recourse, because it was a trespass. This applies not just to the currently-on-the-same-page contractor, but to any future owners.
posted by dhartung at 4:47 PM on October 5, 2010 [1 favorite]


Your HOA is painfully naive. It saves so much time, effort, and money to do things like this the right way from the start. I think you're smart to fight this.

In addition to the other good ideas mentioned above (a competing bid, a survey of the property line, having a lawyer draft the contract), there may also be rules in your HOA's governing documents about how money can be spent, e.g., non-emergency capital expenditures must have been included in the annual budget and then ratified. (With a small building, though, such restrictions may not exist, I don't know.)
posted by kprincehouse at 4:51 PM on October 5, 2010 [1 favorite]


Back to sqaure one. Just because there was a fence there before why is one needed now?

You say:
"...fence fell apart and basically crumbled a couple of years ago. We need a fence there because there's a drop off and if someone dumped off our driveway into ON's yard they'd likely get hurt."
What kind of fence will prevent someone "dumping off" the drop off? Wooden? Chain link? What happens if a fence of any material can't prevent an accident? Who is responsible/liable? You and the other 8 condo owners in your building? The neighbor? The HOA?

Again: Just because there was a fence there before why is one needed now? Who is responsible for its constuction, cost and maintenance?

The HOA, not you, not your co-owners notrthe neighbor needs to provide answers here. Not you. No speculation required. Documention is required! The HOA needs to justify this expense. You and the other condo owners in your building need to address this at the next HOA meeting.
posted by ericb at 4:52 PM on October 5, 2010


*nor the neighbor*
posted by ericb at 4:54 PM on October 5, 2010


I'm going to spit into the wind here to suggest that you might be making a mountain out of a molehill.

For whatever this counts, I've been on my 15-unit vintage condo board, off and on, for 13 years.

A $2,000 fence? Call me when the city tells you that you have to rebuild your back porches and stairwells or get fined, and the replacement cost is $45,000. Or the crybabies on the top floor complain that their ceilings are leaking, and the roof replacement clocks in at $50,000.

To wave a written agreement in your neighbor's face is to insult him. It says that you don't trust him to be a good neighbor, and it says that you have litigation in mind. (If you think his estimate is unreasonable, get another quote; just don't tell him.)

People think differently about boundaries, I get that. As Robert Frost's Mending Wall says well.
posted by Short Attention Sp at 5:06 PM on October 5, 2010 [1 favorite]


Is it just me, or does $2000 seem like a high bid for a fence build?

Nthing kprincehouse.

"It saves so much time, effort, and money to do things like this the right way from the start."

And BTW, getting outside bids does not require permission and it is free. I would start there and work forward.
posted by jbenben at 5:07 PM on October 5, 2010 [1 favorite]


$2000 does not at all seem like a high bid for a fence build.
posted by lakersfan1222 at 5:25 PM on October 5, 2010


Is it just me, or does $2000 seem like a high bid for a fence build?

$15-30 per linear foot isn't crazy; it will vary a lot depending on materials.
posted by ROU_Xenophobe at 5:38 PM on October 5, 2010 [1 favorite]


To wave a written agreement in your neighbor's face is to insult him. It says that you don't trust him to be a good neighbor, and it says that you have litigation in mind. (If you think his estimate is unreasonable, get another quote; just don't tell him.)

it doesn't say that at all. it says that you are interested in firming up the parameters, protecting everyone's interests in a shared financial endeavor, and also says that you are serious about holding your own end of the bargain and that means having your own end of the bargain spelled out in writing. ON is a contractor, a business owner himself. ON should be the first one asking for an agreement in writing.
posted by lakersfan1222 at 5:42 PM on October 5, 2010 [2 favorites]


some owners insist on one, we draw one up, seems reasonable to us non-lawyers, present it to ON i

There is absolutely no way I'd sign anything drawn up by a bunch of non-lawyers looking out for themselves. Of course he refused.

Honestly, this is a fence. People build fences all the time without lawyers. If you feel you need one, then okay insist on it. Just don't expect your neighbor to cut you deal after he incurs legal fees. Or he may simply say, it's not worth the bother to him. You put the fence entirely on your side and you maintain it entirely.
posted by 26.2 at 5:55 PM on October 5, 2010 [1 favorite]


it says that you are interested in firming up the parameters, protecting everyone's interests in a shared financial endeavor, and also says that you are serious about holding your own end of the bargain and that means having your own end of the bargain spelled out in writing.

Yes, sure. I get that. Still, I contend that all of these reasons are inherently unneighborly.

Maybe I've just spent too much time the sticks.
posted by Short Attention Sp at 6:00 PM on October 5, 2010


Sorry tristeza, for so completely misunderstanding the situation. Now I understand that neighbor is neither a condo owner nor an HOA member. (Note to self: don't try to help with other people's HOA problems when you're embroiled in your own).

I can understand why neighbor and HOA BOD would be ok with a handshake agreement. I could also understand why either party (or both) might insist on a formal contract. I guess you just have to weigh the potential for problems down the road against the expense (in both money and neighbor relations) of demanding a formal contract. Ultimately it is just a fence, and if it benefits both parties then a handshake agreement is probably good enough. If the HOA members absolutely insist on a signed contract and neighbor absolutely refuses, maybe you could reach a middle ground by having the HOA's attorney draw one up, then present it to neighbor and offer to reimburse him for the cost of having his attorney look it over and make any revisions until it is a mutually agreeable contract. If you make it clear that there's not necessarily any mistrust between the two parties currently, but situations can change and it would be prudent to make sure not only that the HOA is protected if neighbor should sell his property, but neighbor is also protected in the event that the HOA elects a completely irresponsible board or becomes financially insolvent in the future, he might go for it. Then again it is just a fence, and presumably it's one that existed in the past for long enough to deteriorate and crumble away, with no formal agreement and no problems from the lack of an agreement.
posted by Balonious Assault at 8:32 PM on October 5, 2010


Quick bit of contract law nerdery: unwritten agreements can be legally binding. That said, things get a lot easier down the road when you put things in writing. It doesn't have to be all lawyerly; just write down what everyone is agreeing to, try to think of possible problems that might come up, an agree in advance on how you will handle them. That's all that a good contract does.
posted by craven_morhead at 9:11 AM on October 6, 2010


Quick bit of contract law nerdery: unwritten agreements can be legally binding

Depends on the state.

Regarding the money invested in getting lawyer-ly support - I am in the process of buying a home and have contracted the services of a real estate attorney. He bills at $275 an hour and I've used up about an hour and a half of his time having him review about 40 pages of contract, on the phone with me and my wife explaining the ins and outs of contingencies, and providing some other contract advice.

I'd be surprised if you could spend more than 2h on a real estate lawyer regarding this issue. If it's a matter that contracts are often used for then s/he will have boilerplate to send you. If it's not, s/he will say so.

Regarding Short Attention Sp's statement that this seems unneighborly - I don't happen to agree, but if I did I'd still say "okay." I don't mind if my HOA isn't on warm fuzzy neighbor terms with surrounding properties; their job is to represent my interests and I want to minimize my hassles and expenses with them. They are similarly free, as far as I am concerned, to play hardball with everyone else out there who aren't me, one of the people who pays them and is on the hook for their screw-ups.
posted by phearlez at 9:38 AM on October 6, 2010


Thank you all so much for your insight! I'll update once I'm back from the meeting I'm attending - can't tell you how much I appreciate your input, truly.
posted by tristeza at 12:07 PM on October 6, 2010


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