South and West HOA Fence/Wall FAQ

Welcome to the HOA, and the FAQ on the fence that borders the HOA on the south and west sides.  Questions about how to deal with the wall have been around for a long time, and the issue has been a focus of the various HOA boards for well over a decade.  At meetings over the years several questions and options have been brought up and sought by members of the HOA.  In order to do things legally, the various alternatives were sent to a lawyer to verify their legality.  Combining those, plus other questions that have come up, has resulted in the following FAQ.

Q.  I heard some people in the neighborhood talking about the “HOA wall” or “HOA fence”.  What is this thing, and how does it impact me?
A.  References to the wall or fence usually refer to the large wall that surrounds the part of the HOA along State Street on the west and south sides.  It was installed by the developer at the creation of the HOA a couple decades ago and has been falling apart since then due to a poor design and/or implementation in its creation.

Q.  Who owns the fence/wall?  I noticed it appears to be along some of the HOA members’ properties.
A.  The wall is technically commons area as defined by the CC&Rs and plat maps.  There are twelve homes built along the wall, so for those members of the HOA the wall also serves as their fence between back yards and something outside the HOA, mostly State Street beyond the Utah Department of Transportation (UDOT)-owned hill, but also Yale Ave. and the wrecking yard on the south end for those who live on Texas Ave.

Q.  Why does the HOA own the fence/wall if it is along the property of a dozen homes and not around the entire HOA?
A.  The CC&Rs that the developer created assigned ownership of the wall, along with other commons areas like the park, basketball court area, and volleyball court area, to the HOA for maintenance.  Section 2.07 of the CC&Rs states that, “Common Areas shall mean those parcels of real property within the Development owned by the Association for the common use, benefit and enjoyment of the Owners such as open spaces, landscaping, entry statements, median landscaping, structural common areas, if any, R.V. parking, jogging paths, and the like, together with all easements appurtenant thereto.”  Further, the wall is part of an area known as “Parcel A”, which is defined per “Plat A” (along with parcels B and C) as being “Common Areas to be owned and maintained” by the HOA.

Q.  What does the HOA need to do with the fence/wall since the HOA owns it and it is officially a “Common Area”?
A.  Section 11.01 (c) of the association’s Bylaws states that, “The Association shall maintain, repair, replace and landscape the Common Areas.”
Q.  I live along the fence/wall, and it is crumbling/leaning/falling/broken/unsightly/bad and I would like it to be fixed.  Will the HOA fix it soon?
A.  The decision about how to best handle the situation is a tough one because of the scope and scale of anything attempted.  Suffice it to say that this is a discussion of every  meeting the board has had for a long time, and continues to be investigated to find the right solution that balances the many parties and factors involved.  The purpose of this FAQ is to help elucidate some of the issues for everybody to review.

Q.  Can the wall be fixed or patched in some economical way?
A.  Patching the exterior of the wall has been done in the past to try to fix the aesthetic problems, but the bigger issues are the fact that the wall is rotting from the inside due to water getting in, and tipping over in places due to trees or dirt pushing on it.

Q.  How does water get inside a stone wall?
A.  The wall has a cement cap which is meant to keep water from getting inside the wall, and that cement cap has broken down in several places.  In case that was not enough, the wall has the consistency (if not makeup) of styrofoam with stucco on it, meaning it is not exactly a marvel of modern engineering.  Because of this, water can get inside and then it does what water does when it gets inside anything and finds a way out, taking bits of the wall with it.

Q.  Can the cement cap be fixed?
A.  Potentially, though it is very expensive, and does not fix other problems contributing to the wall’s deterioration, meaning it would be an expensive temporary solution.  If that kind of money is being spent, it may be better to fix the problem permanently by replacing the wall with something designed and built properly.

Q.  Who built the wall, and can they be forced to fix it?
A.  The original developer of the neighborhood (“East Mountain Development LC”) put in the fence and then made it part of the HOA’s Common Areas; this was done long-enough ago that it is unlikely anything can be coerced.
Q.  How much will it cost to fix the fence/wall?
A.  The HOA received quotes in 2013 and 2015 from various fence companies that were deemed to be reputable, likely to be here to cover warranties in a few decades, and capable of doing both cement as well as vinyl fences for comparison purposes.  The best quotes received were for $95,493 for a vinyl fence, and $148,154 for a precast concrete fence, and included fixing the playground wall as well.  Those are now expired, as well as several years old, so new quotes will probably be higher (the next competing quote for a precast fence was $170,955, and even had a smaller scope of work).  Realistic estimates regarding the cost to take out the current fence, put in a new fence, and repair damage done to the UDOT right-of-way (along State Street) as well as neighbors yards are potentially over $200,000.  A Reserve Study, commissioned by he HOA, estimated the cost of replacing just the wall at somewhere between $162,500 ($25/sq.ft.) and $227,500 ($35/sq.ft.).

Q.  With quotes that were relatively low, why didn’t the HOA fix the fence back in 2013 or 2015?
A.  There are a few issues surrounding the project that keep looming and causing delays.  First, financing is important, and the HOA dues started low, and were not increased for over a decade, even to keep up with inflation, despite a booming economy.  As a result, the HOA does not have the money to pay for a project of this size, though for several years the HOA has been saving to eventually be able to fund this properly.  Financing part of the project is an option, but ideally would rather be avoided.

Second, the project will likely damage property for homeowners along the wall due to the machinery involved, as well as outside the wall which is UDOT right-of-way and must be materially restored to its current look and feel.  Even if damage can somehow be avoided, and even if it is restored, back yards will be left open for a significant period of time (weeks to months) as the project takes out the old fence and replaces it with a new one, causing concerns for children, pets, landscaping, etc.

Q.  What other options have been considered to prevent the need to spend this kind of money on the fence/wall?
A.  The board is open to alternatives, but some of them already investigated follow:
1.  Transfer ownership of the wall to those who live along the wall.  Generally this is unlikely to work because a property transfer would require approval from all members of the HOA, including those who would rather have the wall repaired by the HOA as is required per the CC&Rs.
2.  Replace the wall with something significantly different, meaning cheaper.  This is likely against the terms of the CC&Rs as stated in Section 9.02: “The Common Areas shall remain substantially of the same character, type and configuration as when such Common Areas became part of the Development.”  This means the HOA has a duty to keep the wall as a wall or fence of some sort, and also has a duty to keep it from crumbling.
3.  Let each owner living along the wall knock down their section and put in what they want.  The fence is HOA property (“Common Area”), so, until that changes, somebody causing damage to the property would be both a criminal, as well as subject to fines or repair costs which the HOA would send to the perpetrator per the CC&Rs.
4.  Assess those living along the wall for one twelfth the cost of the fence, since it is along their property anyway..  While this could be something asked of those living there, and is easy to propose by those who do not live along the fence and would not suddenly have a $20,000 expense given to them, it is against the CC&Rs to assess some members differently from others except in very special circumstances that do not apply.
Q.  I do not live along the fence/wall, so while its crumbling/falling nature does not impact me, my family, my pets, or my property as much as others, I am still interested in the outcome of this issue, if only because my HOA dues are involved.
A.  This is the general situation of most (90%) of the HOA members.  As all of us have agreed to abide by the CC&Rs, we all work toward common goals such as how to fix the fence/wall which are within the scope of the CC&Rs.  Ultimately the problem with the fence/wall is one the HOA must handle as a whole, and while that means some of us may pay dues for a project that seems to benefit others more than us, it also means the opposite is true in our favor when it comes to other projects; e.g. those who use the playground benefit from that more than those who do not; those who use the basketball or volleyball courts benefit more than those who do not; those who live near other Common Areas maintained by the HOA benefit from those more than others who do not.