Homeowners often look to their community association for help with resolving a dispute with a neighbor. But if the issue involves a party wall or fence (i.e., with no common property in between), there may not be much the association can do. The first step—as in most cases—is to see what the association’s governing documents provide. Hopefully there is language that offers some guidance or, at the very least, confirms that the association should not get involved.
In this context, a party wall is simply a shared wall that separates two or more adjoining units. Party wall issues are usually more prevalent in condominiums, but they can also exist in a townhome-style community subject to a homeowners’ association. Either way, there’s a good chance that, if present, the association’s governing documents will contain a provision on party walls.
The most common arrangement is that the reasonable cost of repair and maintenance of a party wall will by shared by the owners who make use of the wall in equal proportions. For example, if there are two homeowners who share a party wall that burns down, the two homeowners would each contribute 50% towards reconstructing the wall. Keep in mind, however, that this percentage can shift one way or another depending on other factors. It’s possible that one side of the party wall has more damage than the other; alternatively, one homeowner may be 100% at fault for the damage to both sides of the party wall. The takeaway is that the maintenance and responsibility for each homeowner’s portion of the party may not always be split 50/50.
Presuming there is no common property and/or common elements between adjoining units, the community association likely has no financial obligation with respect to a party wall dispute. However, the association probably has an interest that the homeowners are fulfilling their obligations regarding the party wall. So, if there’s a party wall dispute between two homeowners, look to see if the governing documents offer any guidance. There are some declarations that require the homeowners to resolve party wall disputes through arbitration, and there are some that are silent on the issue—implying that homeowners are free to pursue any legal options, including litigation. At the end of the day, boards and property managers simply need to confirm that the association is not required to get involved.
There is no Georgia law that specifically pertains to fences between adjoining parcels of land. So, most disputes involving fences are resolved by looking to other areas of the law, such as easements, trespass, nuisance, and property damage. These same limitations would apply to fence disputes within a community association—unless there is supplemental guidance in the association’s governing documents.
Any fence that’s built perfectly along the imaginary boundary line between two lots is technically encroaching 50% into the other lot. To avoid this issue, homeowners would have to build their fences just inside their boundary lines. But for a community association concerned with aesthetics, this probably isn’t the best solution either. For example, if the adjoining homeowner wanted to build a fence, too, the foregoing “solution” may result in either a small alleyway between fences, or fences so close together that maintaining the outside is essentially impossible.
This is where association governing documents may help. Sometimes there is a provision that specifically requires fences to be built on the property lines. Alternatively, the applicable provision may say, regardless of where the fence is installed, the neighbor has the right to tie into the existing fence. Both options intend to avoid the situations mentioned above, and they end up creating a “party wall” with the portion of the fence that separates the two lots. This means each homeowner maintains the side of the fence that faces their own lot, and any repair/replacement would be shared in accordance with party wall principles.
But no matter what the association’s governing documents provide (or don’t provide) regarding fences, the association may not have a basis to get involved in a neighbor-to-neighbor dispute. The only scenario where an association may need to step in is when a homeowner clearly deviates from what the association approved (e.g., with respect to the fence design and/or location). In other words, it’s probably not the association’s fault or responsibility to remedy an unintentional encroachment issue. These types of disputes, like party walls, will need to be worked out between the neighboring homeowners.
In sum, if you’re unsure about a party wall or fence dispute between homeowners—or whether the association needs to get involved—it’s always best to contact your association’s attorney.