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Can an Individual Homeowner be guilty of Selective Enforcement?

Started by ArjunS • 141 replies • 5237 views

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ArjunS (Illinois)
Posts: 45
Posted:
Hi Everyone,

Our Neighborhood does NOT have a Board, HOA and despite the covenants saying so, 40 years ago the builder did Not appoint an Architectural Committee either. There are about 17 homes in our community and the neighbors have violated almost all the covenants themselves, some more than others.

Our Covenants state that an owner or group of owners can sue to seek damages for a violation of the covenants but have not done so over the last 40 years. They are now opposed to a fence I want to build and have threatened to sue if we build it.

Could they be guilty of selective enforcement given that they did not sue the other owner of a fence built 5 years ago? (Ours will be privacy, theres is not, the covenants simply state no fences without permission from the ACB but they were never appointed)

OR

Is Selective enforcement only applicable to an association and can neighbors single out and enforce rules against only 1 neighbor?

Thank you ,
TimB4 (Tennessee)
Posts: 21,061
Posted:
Arjun,

You know my opinion from an earlier thread.

Question: Should you be guilty of lack of enforcement or should that only be the Association?

For those who haven't read Arjun's other threads, here is the crux of the issue:

1) Arjun wants a fence.
2) Covenants specifically prohibit fences without prior approval from the Association
3) Association is inactive (per Arjun, has been since the developer sold the last lot).
4) Arjun's neighbor doesn't want Arjun to have a fence and has threatened to sue to enforce the covenants if one is put up.
5) There is at least one other fence within the development

Inactive Association (no assessments are paid) = nobody to obtain prior permission.

Arjun is of the opinion that if the neighbor takes legal action, Arjun can claim selective enforcement as a defense.

CjC
Posts: 210
Posted:
Yes neighbors can sue for enforcement. There is nothing FORCING neighbors to sue so they can pick and choose what to sue for.
ArjunS (Illinois)
Posts: 45
Posted:
Hi CjC, so are you stating that neighbors can selectively enforce covenants without being found guilty of the standard of selective enforcement?

Essentially, can they force home 1 to comply for violation A but not home 2 and not be found selectively enforcing the rules ?
LetA (Nevada)
Posts: 2,679
Posted:
WHO do you pay your assessments to? is it a managing company? There HAS to be a BOD even if your dues are $15 per month there has to be some sort of
BOD assembly. Ask the person or company you pay your dues to.
ArjunS (Illinois)
Posts: 45
Posted:
Absolutely nobody. There was no BOD, HOA or Architectural Board ever appointed. Nobody has ever had to pay dues for the last 35+ years. The builder did not follow through on the language of the covenants and appoint an architectural board as stated in the document.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Arjun

It seems that you have an inactive association. This is not the first one we have heard of.

Inactive or not, an owner or group of owners could sue to prevent something from happening such as you building a fence. It will be up to someone/them to decide and take action. Like it or not, that is their right.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By ArjunS on 03/06/2018 5:51 AM
Hi CjC, so are you stating that neighbors can selectively enforce covenants without being found guilty of the standard of selective enforcement?

Essentially, can they force home 1 to comply for violation A but not home 2 and not be found selectively enforcing the rules ?


Arjun, this is a good question. Unfortunately I think a court would first look at the 'covenants that run with the land,' as your community's covenants do. Covenants are a contract with neighbors. To violate them is to break an agreement.

Covenants are usually recorded with the county clerk as notice to all who intend to buy property on the particular land. Courts consider such a recording (with the county clerk) to be legal notice to all. I think the court would say that you had notice that your neighbors could enforce the covenants. To ask neighbors to enforce the covenants against all violators does not seem quite fair. You're encroaching directly on your immediate neighbors' rights.

I would try to talk to the neighbors and see if there is some kind of compromise. Maybe you could offer to pay them something in compensation for not taking you to court? But any other neighbor could still take you to court, and you would still be in violation of the covenants.
FredS7 (Arizona)
Posts: 927
Posted:
Based on Tim's summary, Arjun would not be sued by "them" but rather by "him" (his neighbor.

Judge: Are you picking on Arjun specifically?

Neighbor: No. I would sue any next-door neighbor who built a fence.

ArjunS (Illinois)
Posts: 45
Posted:
Hi Everyone ,

Thank you very much for your thoughts and opinions . They are extremely helpful when considering my circumstances. There is a provision that states in our covenents that any variances must be requested from the Architectural board. However as stated earlier, when I tracked down and called the builder he stated that he never appointed a board. Hence there seems to have been no legitimate transition to a governing body to seek approval.

Is it reasonable for the court to expect I comply with such a situation, one were I have no legitimately appointed body to seek an exception ? Once again , given that this body does not exist , doesn’t it render the need for an exception void because you can’t follow the rule and be in compliance ?

I look forward to your thoughts !
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By ArjunS on 03/06/2018 7:18 AM
Is it reasonable for the court to expect I comply with such a situation, one were I have no legitimately appointed body to seek an exception ? Once again , given that this body does not exist , doesn’t it render the need for an exception void because you can’t follow the rule and be in compliance ?


I do not see anything in the five page "Declaration of Restrictions" about a homeowners' association. Paragraph 4's reference to an Architectural Control Committee (ACC) does not mean to me that legally, a HOA Board could just up and start running. I do not think this Declaration legally establishes a HOA. I think a whole new Declaration would be necessary to establish a HOA. I think that, since the bank no longer owns any of the land there, the ACC is not applicable, and a court would say that you cannot build a fence unless you amend the Declaration. You will need 2/3rds of the owners to vote in a legal election, all i's dotted and t's crossed, and costing a few thousand dollars (by my estimate), to amend the Declaration, assuming you have the votes for such an amendment.

You have a remedy to try to achieve compliance (amend the Declaration). I think a court would say it is reasonable to expect your compliance.

I think the only thing that might be working in your favor is case law's position that there are certain rights sometimes found to be covered under "free enjoyment of the land." Such rights occasionally flat-out nullify a restrictive covenant. You could argue that you cannot enjoy the land without your dogs being able to run free on it and not potentially trespassing onto others' land. How big are your lots again? The bigger they are, I think the better your chances are of winning such a case.

If you have the inclination, you can google

fences covenants site:justia.com

and see what sort of cases come up. This kind of dispute does happen pretty often.
AugustinD
Posts: 5,144
Posted:
Here's what I think is a good introduction to how the courts think about fences and their violation of convenants:

https://law.justia.com/cases/missouri/court-of-appeals/1981/wd31487-2.html
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By AugustinD on 03/06/2018 7:56 AM
Posted By ArjunS on 03/06/2018 7:18 AM
Is it reasonable for the court to expect I comply with such a situation, one were I have no legitimately appointed body to seek an exception ? Once again , given that this body does not exist , doesn’t it render the need for an exception void because you can’t follow the rule and be in compliance ?


I do not see anything in the five page "Declaration of Restrictions" about a homeowners' association. Paragraph 4's reference to an Architectural Control Committee (ACC) does not mean to me that legally, a HOA Board could just up and start running. I do not think this Declaration legally establishes a HOA. I think a whole new Declaration would be necessary to establish a HOA. I think that, since the bank no longer owns any of the land there, the ACC is not applicable, and a court would say that you cannot build a fence unless you amend the Declaration. You will need 2/3rds of the owners to vote in a legal election, all i's dotted and t's crossed, and costing a few thousand dollars (by my estimate), to amend the Declaration, assuming you have the votes for such an amendment.


I said the same thing in one of other threads but many posters seem to feel that there is an HOA, probably inactive. I see nothing that indicates there is or ever has been an HOA, dues, directors, or common property. There are just deed restrictions, and an ACC that the builder could have appointed but never did.
Escaped former treasurer and director of a self managed association.
ArjunS (Illinois)
Posts: 45
Posted:
Hello ! Thank you all for your great opinions . Regardless of your point, it has provided me fantastic food for thought and has allowed me to learn more about the different ways in which something is being interpreted

DouglasK1 after doing my homework and speaking with the builder, I am in agreement with you completely. Based on your understanding so you feel like my neighbors have a legitimate ground to sue AND win ?
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By ArjunS on 03/06/2018 8:39 AM
Hello ! Thank you all for your great opinions . Regardless of your point, it has provided me fantastic food for thought and has allowed me to learn more about the different ways in which something is being interpreted

DouglasK1 after doing my homework and speaking with the builder, I am in agreement with you completely. Based on your understanding so you feel like my neighbors have a legitimate ground to sue AND win ?

There are so many variables that it will be very difficult for anyone here to give you much better than a wild guess. Your best bet would be to contact a local attorney, let them review the situation, and give you an opinion.

Escaped former treasurer and director of a self managed association.
DouglasM6 (Arizona)
Posts: 724
Posted:
I'm going to take this a different direction, only because I do believe the neighbor can and will sue and will win.

The basics of this is simple. The covenants say "no fence unless approved...". Out of the 17 homes, how many of them would sign off and approve your fence? I know they are not technically an ARC, but if you have to stand in front of a judge it would be tremendous to show that you got the approval of 8-10 neighbors. So you might think about drawing up the plans and presenting it to the neighbors and ask them to sign if they are okay with it.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By ArjunS on 03/06/2018 5:51 AM
Hi CjC, so are you stating that neighbors can selectively enforce covenants without being found guilty of the standard of selective enforcement?

Just as an aside, one is never "guilty of selective enforcement". Selective enforcement is a defense against an enforcement action. If you are sued or given notice by your association that you are in violation of something or other, you may defend yourself by claiming "selective enforcement". No one will be found "guilty" of selective enforcement; if you prevail then the case against you goes away and, hopefully, you're able to make the other side pay for your legal expenses.
ArjunS (Illinois)
Posts: 45
Posted:
Thank you so much !! Can I get them to pay my legal costs given the American Rule ?
GenoS (Florida)
Posts: 4,276
Posted:
I've never heard of the "American Rule". Whether or not you can collect your legal costs from them depends on state law and maybe your covenants.
TimB4 (Tennessee)
Posts: 21,061
Posted:
Quote:
Posted By DouglasM6 on 03/06/2018 9:29 AM
I'm going to take this a different direction, only because I do believe the neighbor can and will sue and will win.

The basics of this is simple. The covenants say "no fence unless approved...". Out of the 17 homes, how many of them would sign off and approve your fence? I know they are not technically an ARC, but if you have to stand in front of a judge it would be tremendous to show that you got the approval of 8-10 neighbors. So you might think about drawing up the plans and presenting it to the neighbors and ask them to sign if they are okay with it.

That's actually a good idea.

In fact, I'd get signatures from as many owners as possible (remember to have printed name and address as well).
It would even be better if you hired a notary to walk with you to motorize those signatures.
Then, if challenged in court - as Douglas offers, you present the document to the court and say this is x% of the owners saying they have zero issue with the fence (the higher the percentage the better). I do think that the court would consider that document as you having done your due diligence in obtaining approval (per the covenants).

Another option would be to simply petition the court for a ruling about the need for an Architectural committee. Mind you, this might result in the court assigning a receiver (something nobody wants). However, it is an option.
TimB4 (Tennessee)
Posts: 21,061
Posted:
Quote:
Posted By ArjunS on 03/06/2018 12:47 PM
Thank you so much !! Can I get them to pay my legal costs given the American Rule ?

I think you misunderstand what the "American Rule" is.

Per This IL court case, the american rule is clearly explained [emphasis added]:

Illinois follows the "American Rule," which provides that absent statutory authority or a contractual agreement, each party must bear its own attorney fees and costs. Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 572, 739 N.E.2d 1263, 1271 (2000). Statutes permitting the recovery of costs are in derogation of the common law and must be strictly construed. Calcagno v. Personalcare Health Management, Inc., 207 Ill. App. 3d 493, 502, 565 N.E.2d 1330, 1336 (1991). Similarly, contractual provisions providing for attorney fees should also be strictly construed. Helland v. Helland, 214 Ill. App. 3d 275, 277-78, 573 N.E.2d 357, 359 (1991). Successful litigants cannot recover attorney fees as costs unless expressly authorized by a statute or agreement using specific language. See Estate of Downs v. Webster, 307 Ill. App. 3d 65, 70, 716 N.E.2d 1256, 1260 (1999).

A statute or contract must allow for attorney fees by specific language, such that one cannot recover if the provision does not specifically state that "attorney fees" are recoverable. See Downs, 307 Ill. App. 3d at 70, 716 N.E.2d at 1260; Qazi v. Ismail, 50 Ill. App. 3d 271, 273, 364 N.E.2d 595, 596-97 (1977).

Therefore, per my reading, each side would have to pay their own legal costs.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By TimB4 on 03/06/2018 3:26 PM

That's actually a good idea.

I think it's a very good idea.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By TimB4 on 03/06/2018 3:26 PM
That's actually a good idea.

I think it's a very good idea.

(sorry for the mis-quote above)
ArjunS (Illinois)
Posts: 45
Posted:
Thank you all so much . Yes, I agree with your assessment of the American rule and have come to the same conclusion, however I wanted to ask the question without leading it the other way .
ArjunS (Illinois)
Posts: 45
Posted:
While this is a great thought, almost all my neighbors do not want a privacy fence because it will obstruct their ‘view’ . Hence the likelihood of getting more than 2 signatures is slim to none.
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By ArjunS on 03/06/2018 3:55 PM
While this is a great thought, almost all my neighbors do not want a privacy fence because it will obstruct their ‘view’ . Hence the likelihood of getting more than 2 signatures is slim to none.

I think you have your answer now. You will most likely not have this fence. If you build it, you will most likely get sued and lose.

Another option, You might consider using plants, like a hedge, as your privacy fence. If your deed doesn't specifically prohibit a hedge or use the term "solid" when describing the fence, you might get away with that. A non solid fence, chain link or the partial iron and block structures may be allowed. If you can get either of those approved by the neighbor, you could then line the inside with plants.

Deed restrictions can really bring the suck, at times. sorry for the misery you're going through.
ArjunS (Illinois)
Posts: 45
Posted:
Thanks so much . I completely agree about the restrictions . I wish my neighbors were not so nosey . We already built the fence this weekend so let’s see what happens.
TimB4 (Tennessee)
Posts: 21,061
Posted:
Quote:
Posted By ArjunS on 03/06/2018 4:59 PM

We already built the fence this weekend so let’s see what happens.

So why all the questions?

If you were planning on building the fence anyway, you knew you were opening yourself up to potential litigation (as that is what the neighbor told you they would do). I would have thought you would have done the research prior to building the fence vs. after.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Arjun

Based on you knowing their displeasure and it appears you not making any effort to reconcile the issue, I would go after your in NY Minute based on your arrogance.
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By TimB4 on 03/06/2018 5:05 PM
Posted By ArjunS on 03/06/2018 4:59 PM

We already built the fence this weekend so let’s see what happens.


So why all the questions?

If you were planning on building the fence anyway, you knew you were opening yourself up to potential litigation (as that is what the neighbor told you they would do). I would have thought you would have done the research prior to building the fence vs. after.

He's looking for a possible defense. Not finding it I'm afraid.
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By ArjunS on 03/06/2018 4:59 PM
Thanks so much . I completely agree about the restrictions . I wish my neighbors were not so nosey . We already built the fence this weekend so let’s see what happens.

You need to look into your state laws to see if they can be awarded their legal fees. If they can, get ready to remove your fence and pay their fees. If they can't be awarded their legal fees, or if the chance of them being awarded their fees is slim, you might be able to bluff them out of the law suit.

That being said, since nearly all of your neighbors are against this fence, and you built it anyway, you may go up against a collective group that cares more about their view than they do their legal fees.

You have poked the bear. Good luck.
GuyM1 (Ohio)
Posts: 318
Posted:
Hi All
Just my thoughts on this subject. First I would make or have plans for the fence made up. Take the plans to the city building department and ask for permits. Now the city may have certain requirements that you must follow and this may need to go in front of a board from the city to approve. Now if you get approved you need to put the application in a window that can be seen by all which like in my state is a 10 period where someone can try and stop this which would go in front of the city architectural board. If you win there you can build your fence. I believe that since your development has no Architectural board and no incorporation the cities board could overrule the neighbors. I think this would only cost you the permits and if you lost you may be able to get that refunded. Just a way to also start a real Association up!

The city may not allow what you propose but let you know what you can build...Just remember you have to live there may be there is a compromise?

Remember just my thoughts.
DouglasM6 (Arizona)
Posts: 724
Posted:
The fence is built. The city permit will not override deed restrictions unless the documents allow it. If he goes to the county now, they will most likely make him take the fence down, if it requires a permit to be built.

It's a mess. I wish him luck.
GuyM1 (Ohio)
Posts: 318
Posted:
Hi Douglas
The fence isn't built yet. He said his neighbors said they would sue if he did build the fence. The way I look at that restriction it says Committee in it and since there is no committee they have no standing.
DouglasM6 (Arizona)
Posts: 724
Posted:
Hi Guy, please read his post.

Quote:
Posted By ArjunS on 03/06/2018 4:59 PM
Thanks so much . I completely agree about the restrictions . I wish my neighbors were not so nosey . We already built the fence this weekend so let’s see what happens.

GuyM1 (Ohio)
Posts: 318
Posted:
Hey didn't see that sorry.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By GuyM1 on 03/08/2018 4:20 PM
Hey didn't see that sorry.

GUY

Might you be a bit quick on defending an owners right to do as they please? It seems your posts lean that way. Not a criticism. Just a question. I myself lean toward the associations rights over the homeowners rights as the homeowner agreed to the restrictions of their rights when they bought in.
ArjunS (Illinois)
Posts: 45
Posted:
Hi Everyone,

I consulted 12 different lawyers from my county and others . They practice Real estate, Litigation and some are even specialized to work with or against HOA’s . It seems my suspicions and Guy’s sentiment above may have been correct.

A covenant is only valid if it is enforceable and legal, otherwise they are deemed void. Here is an EXAGERATED example to help explain the point - if a covenant says that you must ask Elvis Presley for written permission anytime you wish to make a change, it is legal however it is invalid because there is no way to be compliant even if you want. Hence you could even go to a judge and request a declatory judgment.

In my case as Guy pointed out, there is no committee per the wording in the contract so they have no standing. Further they have NOT enforced the covenents so doing so against my fence would be selective and significantly hurt their case.

Personally I don’t believe in all these restrictions on private land and specifically bought into a community with no HOA’s and a few fences ( even though theirs were not privacy ) because I realize that they would have no standing at that point.

Regardless, it has been very good to hear both points of view so I appreciate all the input.
TimB4 (Tennessee)
Posts: 21,061
Posted:
You talked to 12 attorneys?

Sounds like you were shopping for answers.

2, perhaps 3 attorneys makes sense. Twelve sounds like you weren't hearing want you wanted to hear so kept asking until someone agreed with you.

Of course, I could be wrong.
ArjunS (Illinois)
Posts: 45
Posted:
No , I was actually making sure they had sound logic . Each one agreed in the same way without being promoted . 12 because they have different specialities. Not one of them said the neighbors had a strong case 😏.
GuyM1 (Ohio)
Posts: 318
Posted:
Hi John
As you said in your first line Owners Rights! I feel the problem that is destroying communities and owners is boards that do what they want and use it against certain people in their community that they don't like. This ends up making Attorneys richer and Associations poorer. I believe in keeping a community healthy, wealthy and happy. Boards that don't understand the Declarations can destroy an Association. Most Association don't update to current times which can cost Associations money and destruction of a community. Some bylaws are just so outdated that should just be removed or brought up to current times. I'm not talking about members being able to do what they want. I want an Association to upkeep the properties to a high standard and work with all members on all things {TRANSPERENTCY}. I think any Litigation in an Association should come before members to see what they think and feel about any bylaw violation instead of spending monies that will hurt the Association. Said monies can never be recovered and the years wasted that a person can't get that time back, so stop and think. It's called a Community for a reason! Or we should just go back to the times of the Salem Witch Hunts. I give you a few samples....Board brings suit against a member, they can recover if they win Attorney fees, Court costs and Damages but if the member wins he can only receive Attorney fees. no Court costs or Deposition fees, or any Damages, it should go both ways that the Defendant should receive the same as the Plaintiff. Here I have a 8-foot hole going up my staircase from the wall blowing out and the foundation under it has lowered to almost an inch and a half which destroyed my ceramic tiles the board says it my problem but the bylaws say walls-in! I have lived with this for well over 2 and a half years. I want to sell at the beginning of this problem but you can't sell under those conditions so that's over 2 years of my life thrown down the drain with the plans I had when I wanted to move. So yes I'm for more rights for the members.

Thanks
ArjunS (Illinois)
Posts: 45
Posted:
GuyM1 , I agree with you completely and I am so sorry to hear about your situation as well. It’s imlortant to remember through all this that the home is the homeowners not the communities and so there must be a right to enjoy your land as well, what’s the point of buying a house and living like a renter.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By GuyM1 on 03/09/2018 6:27 AM
Hi John
As you said in your first line Owners Rights! I feel the problem that is destroying communities and owners is boards that do what they want and use it against certain people in their community that they don't like.


Guy, I think the biggest problem is competent people refusing to run for the board. As far as I am concerned, those who complain about anything meaningful, but refuse to run, should be ignored. At this point, I guess that's my cynicism coming through.

I am glad you emphasized how much your own battle cost you. I think what you faced is way more than that with which ArjunS is contending. Still I think that, the instant any of ArjunS's neighbors file suit, he should put away $5000 to $20,000 to fight for his fence, including an appeal by either his side or the neighbors' side. The situation is not a slam dunk for either side. My money would be on the neighbors winning, but I could be wrong. Either way, I think the dispute translates to costs like what Guy cited.
GuyM1 (Ohio)
Posts: 318
Posted:
Hi Augustin
We are only nine units and I didn't want to run because I want to move out. Most don't want me on the Board because I tell them they don't understand the bylaws. They pick things out of the law and try to use that to what they want. If you read one of my posts about the Truck parking you will see I won that Lawsuit against me because they wanted to say it only said at night which I told them they were breaking the bylaw for parking during the day and letting a member park his work van with racks and lettering in the driveway every day. This was just one of the reasons I won that case. I just wanted my unit fixed so I could sell but they said it was my problem, not so but that's what they interpret the bylaw to be even though it is explained clearly in the Doc's what the Association is responsible for. Even though I will be moving as soon as my unit is fixed I'm trying to get on the board to help put this little Association on track. The problem a suit is going on for the damages to my unit and doesn't help with trying to get a huge loan to fix all the problems that past boards have neglected and the one that has been there from 2013 that I have told them for years they need to reroof all the units that they just keep patching that is ugly. The old T1-11 is so bad which they just keep throwing more money at which I have told them is a waste and the units should be vinyl sided, so with new roofs and siding, they would be virtually maintenance free for at least 45 years. There is also a lot of little issues that need to be addressed. All this is they never want to spend money which put it in this shape and Ohio law didn't help by letting Association vote to fund the Reserve or not and they have voted for well over 20 years not to fund the Reserve. Pray, I get on the Board and can help the other two board members put this on track and what is great one of them has been on and taught boards for years. That person is also the board member that testified and help me win my truck case and which they kicked her off the board because she didn't side with the other two.
AugustinD
Posts: 5,144
Posted:
GuyM1, were I in your shoes, I would also be trying to sell and get out.
DouglasM6 (Arizona)
Posts: 724
Posted:
Arjun, please keep us informed on this and thanks for sharing your experience with this board.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Arjun

Your neighbor(s) said they would sue if you built the fence. You have built it so you have poked the bear. Shopping for answers you like means nothing. You will just have to wait and see if the bear responds.
ArjunS (Illinois)
Posts: 45
Posted:
Quote:
Posted By DouglasM6 on 03/09/2018 1:35 PM
Arjun, please keep us informed on this and thanks for sharing your experience with this board.

No worries ! Thank you all for sharing your thoughts and opinions . It’s been fantastic learning what everyone thinks!
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By AugustinD on 03/09/2018 6:40 AM
Posted By GuyM1 on 03/09/2018 6:27 AM
Hi John
As you said in your first line Owners Rights! I feel the problem that is destroying communities and owners is boards that do what they want and use it against certain people in their community that they don't like.


Guy, I think the biggest problem is competent people refusing to run for the board. As far as I am concerned, those who complain about anything meaningful, but refuse to run, should be ignored. At this point, I guess that's my cynicism coming through.

I am glad you emphasized how much your own battle cost you. I think what you faced is way more than that with which ArjunS is contending. Still I think that, the instant any of ArjunS's neighbors file suit, he should put away $5000 to $20,000 to fight for his fence, including an appeal by either his side or the neighbors' side. The situation is not a slam dunk for either side. My money would be on the neighbors winning, but I could be wrong. Either way, I think the dispute translates to costs like what Guy cited.


If as Tim noted above and per the the OP’s prior posts: Covenants specifically prohibit fences without prior approval from the Association

My money potentially would be on the OP winning if his attorney argued correctly. After all if the Owners themselves (including the disgruntled neighbor) has not seen fit to establish a proper functioning HOA in the last many, many years to which the OP per the documents “Could Properly” submit for any approval ... well that potentially should be the HOA’s BAD. Maybe if the Courts start cracking down on the apathy BS there will be less apathy such as the OP has faced in trying to get his fence approved.
ArjunS (Illinois)
Posts: 45
Posted:
Hi Janet thank you so much for sharing your thoughts! I certainly feel the same way as the builder did not follow his own rules and did not create the Architectural board. Hence anyone that has done anything since the inception of the neighborhood 40 years ago has been out of compliance.

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