neighbors walk through back yard- want fence

[schipowner]

What is the name of your state (only U.S. law)? Maryland

We recently purchased an end unit townhome in Germantown, MD (Churchill Village- South HOA). There are 6 townhomes in our "row" they all back to a 10 ft high retaining wall within our property lines. The other end unit has a fence to the wall, the 4 neighbors in the middle do not have a fence, and we want to put a fence within our property but to the wall as well. effectively sealing in the 4 middle yards

Those 4 neighbors are refusing to sign off on the HOA application (all aspects of fence meet guidelines), causing a public hearing to be scheduled to discuss. When we asked them why they say= they use the back yard areas of the 5 houses to walk through and to the front...to take out their trash, to carry bags of mulch, lawn mowers, etc to the front of the houses. instead of taking such items through their house.

We did not know they did this before we bought the property and they are now refusing to stop.

Can the HOA deny the fence, since it would cause an inconvenience to our neighbors? Can the HOA declare our backyard/side yard a "common area"???

A few reasons we have thought of on our side are:

we have dogs--small but can be aggressive/protective,
trespasser liability while on our land,
trash waste (or other items) dropped on our property (dogs eating it),
play ground next to our unit (protection to and from the dogs)
house on other end has a fence already, as do several others throughout community
and overall enjoyment of our backyard.

We specifically called the HOA before we put an offer on the house about the fence procedure and were told its a simple process and they have never had any problems as long as the fence complies to the guidelines.
Any guidance would be appreciated!What is the name of your state (only U.S. law)?

 

[drewguy]

What do the CCRs say about common areas? It seems unlikely they could just turn your property into a common area.

Why not go through the procedure? If they deny the fence application, put up no trespassing signs and plant some trees as a border. Or roses--really thorny roses.

 

[justalayman]

Can the HOA deny the fence, since it would cause an inconvenience to our neighbors? Can the HOA declare our backyard/side yard a "common area"???

if the neighbors have used the area long enough, they could sue in court and obtain a prescriptive easement. Other than that, the HOA taking of your property would not be legal. Have you simply considered calling the police and reporting a trespass? Should the HOA refuse to allow the fence, that is what I would consider next.

 

[schipowner]

I just read up on easements..and that scares me a bit.... Most of the people are original owners since 1987 and i assume have been doing this since then. They did not ask if they could walk through our yard, they simply do it...even after we asked them to stop. Hopefully they don't lawyer up, or are lawyers!

We thought about bushes in case the fence gets denied...but "anything that acts like a fence" needs approval, so hedges or planters or anything would have the same problem.

I guess I'll hire a lawyer and see how the hearing goes

I did think about putting a sprinkler in the walk way on trash night but don't want to start any wars.


Additional advice is appreciated!

 

[justalayman]

I did think about putting a sprinkler in the walk way on trash night but don't want to start any wars.

Contech Scarecrow Sprinkler Dog Deterrent | PaulTech Network

 

[schipowner]

if the neighbors have used the area long enough, they could sue in court and obtain a prescriptive easement

Is a prescriptive easement used when that is the "ONLY WAY" to do whatever it is....???

For example taking the trash out...they could take it through their homes from the backyard, right? Walking through my yard is not the ONLY way.

Just trying to clarify. Im a bit nervous now.

 

[justalayman]

=schipowner;2603953]Is a prescriptive easement used when that is the "ONLY WAY" to do whatever it is....???

No, that would be an easement by necessity. An easement by necessity is typically applied to access to property as a whole. They obviously can access their property.

a prescriptive easement is where a person uses a piece of property which they don't own for some statutory determined time. If they meet the requirements of the law, they can sue to be able to be allowed continued use of the property.



It takes 20 years to support a claim of prescriptive use. Due to the date of 1987 and the thought of continued use, you might have a problem if they want to argue the fact in court.

time to speak with a lawyer

 

[JustAPal00]

Not sure how deep your yard is but have you thought of leaving 4 ft at the end of your yard outside the fence that they could use as a walkway? If your fence is denied, you may suggest that!

 

[FarmerJ]

You refered to a ten ft high wall with in your property lines , is that just a tall wooden fence ? if so is there enough width inbetween it and the actual lot line so with a gate/ door that each of the middle homes would only have to open the gate , bring in /take out what they must? Perhaps its something to talk about at a board meeting? Other wise you may well end up having to consult with a real estate atty.

 

[xylene]

If you get denied, then lobby you butt off to get the other end fence removed.

 

[nextwife]

Can you put rose beds on the property line? Roses smell nice, after all!

 

[schipowner]

Not sure how deep your yard is but have you thought of leaving 4 ft at the end of your yard outside the fence that they could use as a walkway? If your fence is denied, you may suggest that!

The retaining wall is holding up land/dirt, its a solid layer of horizontal wood beams about 6 feet tall, then a 2 beam fence about 4 feet tall on top of that = 10ft), we own a few feet back on top of that, but its pretty much unusable= trees, and shrubs'. then there is a condominium building right there (behind a few layers of trees) so no way to let them walk on that.

You refered to a ten ft high wall with in your property lines , is that just a tall wooden fence ? if so is there enough width inbetween it and the actual lot line so with a gate/ door that each of the middle homes would only have to open the gate , bring in /take out what they must? Perhaps its something to talk about at a board meeting? Other wise you may well end up having to consult with a real estate atty.

And our yard is VERY Small.....like maybe 10 feet max from the end of our deck. so cutting into it would not be a good solution, and would end up costing double since we would have to buy fencing materials for the back side of the fence (25 feet) instead of using the retaining wall.




I just hope the HOA see's that this is ridiculous and then neighbors DON'T jointly (or individually) sue for an easement (hopefully they don't know thats a possibility or that one is a lawyer or something!!). We would probably end up moving out as soon as possible if that's the case.

This is our first home purchase, and definitely our last with an HOA. It's been nothing but problems since we put in a bid!

Already can't wait to sell and move on. and we literally just moved in this week.

Thanks for the continued advice!!!!!!

 

[drewguy]

A couple other things:

1) The HOA should not be addressing the issue of a prescriptive easement. That's a property issue resolved in court. They should be addressing only whether you can or cannot build a fence consistent with the rules of the HOA. That there's a fence at the other end suggests you should be able to build one as well.

2) If you have to fight over the prescriptive easement issue in court, check with your title insurance co. The easement would adversely affect your land and the value. They would either fight for you in court or potentially pay you some money for the loss in value.

3) Keep in mind that even if it has been 23 years, the neighbors have to prove continuous, hostile (i.e., without permission) use for 20 years. There is a good chance that they simply had permission from the prior owner(s). You might in fact check with them ASAP to see what their recollection is. Probably best to (a) do that now before their recollection may change and (b) get their answer, if it's helpful, in writing.

4) Also, if there is a prescriptive easement across your property, then there also is one across the other three neighbors' yards, since presumably the last person (furthest from you) has to cross everyone's yard. The 3 people closer to you all may have less interest in acquiring an easement if it means they also are subject to one.

5) Finally, one compromise to consider is that you put up a fence, but include a gate. Agree to provide permission for people to use it occasionally for things like lawnmowers, but not as a regular matter for taking out the trash. Surely that's easy enough to take out the front door.

 

[schipowner]

Update

So I left a message for the property manager yesterday and she returned my call today. Recap of call:

-Not allowed to put up no trespassing signs
- Several neighbors have called her to discuss this already.
-They're main problems were "land locking" and "emergency egress"

-She stated that in the past the board has requested owners in a similar situation to cut their fence a few feet short of the retaining wall to allow pass through


my opinions: With regards to land locking---they have a front door, so I don't see that as being legitimate. And with emergency egress a) what do condo owners do? they don't have a secondary egress, and b) the retaining wall tappers down towards the other end and should be sufficient in case of emergency

allowing access between fence and retaining wall - I'm not OK with that. Let them deny the fence and we'll appeal or take to civil court. Im not letting them use my property without the proper procedures/payment first.

When I asked if having someone represent us at the hearing was allowed, she stated if get a lawyer she can no longer speak to us (understood) and the process would be completely different and take longer....fine!

At this point I am going to proceed with the application as is, submit it, and await for the hearing (which she said would be 9/8--they're on vacation August (hah!)) between now and then I will make it known verbally to our neighbors we do not want them on our property, and also get a no-trespassing order placed through the police department. Until they can prove legally they have a right/easement then they are not allowed...right???

I also spoke with our real estate agent, and he confirmed there were no filed easements on our property.

Ill keep this updated in case anyone has a problem in the future.

Thanks for all of the advice!

 

[justalayman]

Until they can prove legally they have a right/easement then they are not allowed...right???

correct

Thanks for all of the advice!

You're welcome