No HOA and Issues.

We are 10 lots, 6 buildings constructed only within a gated community. There is no HOA. I have a few questions for the experts here as I know nothing about HOA's. My knowledge is from reading all our CC&R's.

1. One (1) owner has put up a fence which matches the perimeter fence. Two (2) other lots started building fences that do not match the perimeter fence as stated in the Restrictions. I notified them to please abide by the current CC&R's. Their response was that they sent the Declarent a certified letter to get approval to build this fence. I asked if the Declarent has responded and they stated "no".

Found the following,

5.7.3 Time For Review

If the Declarent or the Architectural Committee fail to approve or disapprove plans and specifications submitted by an owner within (30) thirty days after a written receipt of a written request meeting the requirements of paragraph 5.7.2, above, then such approval shall not be required; however, notwithstanding the presence or absense of prior approval, no building, wall, deck, fence, lamppost, exterior lights, swimming pool, spa, hottub, landscaping or other structure or exterior improvement shall be erected or allowed to remain on any site which violates any of these convenants, conditions, restrictions and easements.

(In a nut shell, 5.7.2 states that a complete detailed set of plans and specifications must be sent to the Declarent no less than 15 days prior to construction.) Construction already started and was stopped once a I sent a letter to both parties to abide by the Restrictions.

BTW, we also have no Architectural Comittee.

The way I undestand, 5.7.3 is, they can build a fence without a response from the Declarent as long as it meets the Restictions already present. Which is, it has to match the perimeter fence. Is this correct?

thanks in advance for the replies,

Another question! If these two (2) parties approach the Declarant, can they request to be appointed the nominee by The Declarant to make decisions in the community? If a nominee is appointed in our community, apparently they can serve at the will of the Declarant. One (1) of these parties knows the Declarant on a personal level!

thanks in advance,

Thanks for your input Tim.

So, whoever is in control or serving on committees, they must comply with the CC&Rs! Here is a clause I found in our CC&Rs.

Architectural Control Committee. For the purpose of ensuring the development
of the subdivision as a high quality residential community, Declarant reserve the right to control
buildings and structures as set form in paragraphs 5.1 through 5.6 and hereby reserve the right, in
their sole and absolute authority, to approve or disapprove any and all proposed construction,
alteration or improvement of the buildings, structures, landscaping, fences and exterior lights
placed on each lot, unless otherwise specifically stated herein. The owner or occupant of each
lot by acceptance of title thereto, or by taking possession thereof, covenants and agrees that no
building, wall, fence, landscaping, lamppost, exterior lights, swimming pool, spa, hot tub, or
other structure shall be placed upon a lot within the subdivision unless and until plans and
specifications have been reviewed and approved in writing by the Declarant or their "nominee"
as hereinafter set forth. Each such building, wall, fence, landscaping, plantings, swimming pool,
spa, hot tub or other structure shall be placed on a lot within the subdivision only in accordance with the plans and specifications and lot plan so approved in writing. Approval or rejection of plans and specifications may be based upon any ground, including purely aesthetic grounds, which the Declarant or their nominee, in the exercise of their sole and absolute discretion, shall deem sufficient. No alteration of the exterior appearance of any building or improvements (including but not limited to the color of any building or improvement) shall be made without the prior written approval of the Declarant or their nominee.

Our CC&Rs state that any fence erected in the community must match the existing perimeter fence. But doesn't this clause give the Declarant unlimited powers to approve any fence regardless of what the CC&Rs state? That's the way I interpet it and hope that I'm wrong.

thanks,

Well, our CC&Rs clearly states;

6.11
No fencing shall be permitted that is inconsistent with the perimeter fencing of the
subdivision in quality, style and materials, nor more than six (6) feet in height. Notwithstanding
the foregoing, the Architectural Control Committee shall have full discretion to approve or
disapprove any fence, in its sole discretion.

Apparently, one of these neighbors has written a certified letter to the Declarant, but has not heard anything yet. I'm not sure what was written in the letter as the neighbor would not disclose to me.

Would it be worth while, to write a letter to the Declarant and ask him to keep the fence restriction for aesthetic grounds? Or should I just wait and see what happens? The neighbor might not even get a response. If they commence the construction of their fences once again. Should I question or ask for proof of approval from Declarant?

thanks,