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Subject: Precedent for Fences
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AdrianC1
(North Carolina)

Posts:4


07/17/2019 7:34 AM  
My HOA will not allow fences to be built on my side of the street because it boarders our common area, for strictly esthetic reasons. But, homes on the other side of the street are allowed to have fences. Isn't that precedent? There is nothing in our bylaws and covenant that denies fences on my side of the street. The board is trying to put new guidelines in place, and trying to change the bylaws before they approve my application. I live in Charlotte, NC, and am not sure of the HOA laws here, but I believe that if nothing denies the fence in our documents, and other homeowners have them, then legally they cannot deny my having one. Can anyone help me with this?
AugustinD


Posts:1886


07/17/2019 7:47 AM  
Posted By AdrianC1 on 07/17/2019 7:34 AM
I believe that if nothing denies the fence in our documents, and other homeowners have them, then legally they cannot deny my having one.


From my experience and reading, you are correct.
AdrianC1
(North Carolina)

Posts:4


07/17/2019 3:38 PM  
Thanks for your reply. What do I need to do to convince the board that this is so? Do I need to see a lawyer?
KerryL1
(California)

Posts:6534


07/17/2019 3:58 PM  
Usually matters like fences wouldn't be in the bylaws. They probably would be in the covenants (CC&Rs; declaration). Do the covenants give the HOA board of directors the authority to make rules about fences or other exterior items like landscaping?

Does anyone else on your side of the street have a fence?
AugustinD


Posts:1886


07/17/2019 4:13 PM  
Adrian, first, like KerryL1 wrote, can you confirm that your HOA's Declaration (also known as "CC&Rs" or "covenants" or "covenants, conditions and restrictions" say nothing about fences? If possible, please post your HOA's Declaration here, or provide a link to it.
MelissaP1
(Alabama)

Posts:8396


07/17/2019 4:50 PM  
Hold your horse. Not all fences are created equal. Nor is the area they are put around. For example: My HOA we do NOT allow fences to be in the front yard. It has to be in the back. Our front entrance doors were at the Side of the homes NOT front. So the fences had to go BEHIND the "Front" door. However, we had an owner that lived on a corner lot. Her door on the side was alongside the road. If she put a fence of 6 foot there, it would block the STOP sign view at the intersection. Streets were public and told us No to any kind of view blockage. The lady had 2 small pugs. She wanted them to be able to go out. Unfortunately, putting up her fence would also make it appear to be in her front yard as well. It wasn't but from the side it looked like it.

We came up with a compromise. She could have a 6 foot fence in her backyard just behind her side door. However, it had to step down to a 4 foot fence toward the end at end of house. This allowed the Stop sign view and she could let her dogs out. It didn't look like an eyesore and worked well.

So it may be that your set up isn't the same as the others. It may not accommodate a fence. We had a few lots that would not fit a fence for aesthetic reasons. If you or your neighbors are trying to sell your home. Do you want the buyers be saying "What about that fence? It doesn't match the rest of the area?" Believe me I live next to the world's ugliest fence that is set up 5 feet off the ground!

Former HOA President
AdrianC1
(North Carolina)

Posts:4


07/17/2019 5:04 PM  
Our Covenants state that the Architectural Control Committee is the Board. The Covenants state : Article X, Architectural Control": Section 10.2 Purpose:

The Committee shall regulate the external design, appearance, use, location and maintenance of the Property and of improvements thereon in such a manner so as to preserve and enhance values and to maintain a harmonious relationship among structures and the natural vegetation and topography. Colors, materials and design features will not be approved which will tend to make an individual house call attention to itself in the overall design of the subdivision.

Section 10.3. Extent of Control:

No building, FENCE, wall sidewalk, obstruction, driveway or other structure shall be commenced, erected or maintained upon the property nor shall any exterior addition, change repair or alteration therein be made without the prior written consent of the Committee..... Refusal or approval of plans... may be based upon any grounds, including purely aesthetic considerations, which in the opinion of and the sole and uncontrolled discretion of the Committee, except as provided in Section 10.7 shall be deemed sufficient..

I think this is enough to answer the questions raised.

No other homes have fences on my side of the street. Mine would be the first.

My home boarders a common area, no restrictive covenants exist, and I am willing to put up any fence the board will approve of. Their objection is that they won't like the way it will look. My safety is at risk, since there are coyotes, deer, and all kinds of wildlife walking up to my bedroom windows, which are floor to ceiling. I was charged at by a buck twice, just walking out on my property. Animal blood and feces have been on my deck, which is ground level. I'm fearful, which is why I'm asking for the fence. Their only concern is aesthetics.

Thanks to all who have replied.
AugustinD


Posts:1886


07/17/2019 5:26 PM  
Adrian, thank you for quoting the covenants exactly. I would re-apply for the fence, providing a timeline of the events and any photos you have showing where wildlife came onto your property and threatened the safety of your property, your family or yourself. If the HOA rejects your application for a fence, then the next time one of these wildlife intrusions occur, be meticulous in documenting the damage with photos and an affidavit. Notarize the affidavit. Keep a log of how much you pay to repair the damage. Re-apply for the fence again. Also, post back here, as I (for one) will have more to say when the HOA is taking actions that endanger your property and your health; has been put on notice of same; and may have responded incorrectly.

Submit your applications certified mail, return receipt requested. Make sure you save a copy of your submissions.

You might want to consult an attorney. Of course, this will cost a few thousand dollars at least just to start.

When it comes to aesthetics, I think the HOA wins the conflict. When it comes to safety, the HOA could very well lose and lose big.
KerryL1
(California)

Posts:6534


07/17/2019 5:37 PM  
I usually agree with Augustin, but it occurs to me that this might be one of those "Buyer Beware" situations whereby the purchaser of this home perhaps should have noticed the surroundings and maybe checked a little further about safety.


AdrianC1
(North Carolina)

Posts:4


07/17/2019 6:02 PM  
Thanks,Augustin. I will post any developments.

AugustinD


Posts:1886


07/17/2019 6:20 PM  
Posted By KerryL1 on 07/17/2019 5:37 PM
I usually agree with Augustin, but it occurs to me that this might be one of those "Buyer Beware" situations whereby the purchaser of this home perhaps should have noticed the surroundings and maybe checked a little further about safety.


Barring more information, and for the reasons Kerry gives, I agree the OP's chances are iffy.
KellyM3
(North Carolina)

Posts:1418


07/17/2019 8:02 PM  
Posted By AdrianC1 on 07/17/2019 7:34 AM
My HOA will not allow fences to be built on my side of the street because it boarders our common area, for strictly esthetic reasons. But, homes on the other side of the street are allowed to have fences. Isn't that precedent? There is nothing in our bylaws and covenant that denies fences on my side of the street. The board is trying to put new guidelines in place, and trying to change the bylaws before they approve my application. I live in Charlotte, NC, and am not sure of the HOA laws here, but I believe that if nothing denies the fence in our documents, and other homeowners have them, then legally they cannot deny my having one. Can anyone help me with this?




In North Carolina, Architectural Review Committees can be absolutely arbitrary in approving/denying installations. There is no "constitutional right" to the fence as you entered a private transaction by buying in an HOA-protected community. Also, would this fence break the aesthetic continuity of "your side" of the street and common area? If so, that's reason enough to deny you.

However, I'm not in favor of enacting policies quickly to deny a request. I guess we'd need more details to fully open deliberation among the Peanut Gallery.
AugustinD


Posts:1886


07/17/2019 8:40 PM  
Posted By KellyM3 on 07/17/2019 8:02 PM
In North Carolina, Architectural Review Committees can be absolutely arbitrary in approving/denying installations


The North Carolina Supreme Court ruled otherwise in 1975. From Boiling Sp. Lakes Div., Etc. v. Coastal Serv. Corp., 218 S.E.2d 476 (1975):
"The exercise of the authority to approve the house plans cannot be arbitrary. There must be some standards. Where these standards are not within the restrictive covenant itself, they must be in other covenants stated or designated, or they must be otherwise clearly established in connection with some general plan or scheme of development. Vaughan v. Fuller, 278 Ala. 25, 175 So. 2d 103 (1963); Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, *479 449 F.2d 361 (1969); Levin v. Mountain Farms, Inc., 22 Conn.Sup. 14, 158 A.2d 493 (1959); Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430 (1957); Carroll County Dev. Corp. v. Buckworth, 234 Md. 547, 200 A.2d 145 (1964); Parsons v. Duryea, 261 Mass. 314, 158 N.E. 761 (1927); West Bloomfield Co. v. Haddock, 326 Mich. 601, 40 N.W.2d 738 (1950); Syrian Antiochian Orthodox Archdiocese v. Palisades Associates, 110 N.J.Super. 34, 264 A.2d 257 (1970); Plymouth Woods Corp. v. Maxwell, 407 Pa. 539, 181 A.2d 321 (1962).

And it is the general rule that a restrictive covenant requiring approval of house plans is enforceable only if the exercise of the power in a particular case is reasonable and in good faith. Annot., 40 A.L.R.3d, supra, at 879."

See https://law.justia.com/cases/north-carolina/court-of-appeals/1975/7513dc364-1.html

This part of the 1975 case has been cited a number of times in North Carolina court reviews of HOA architectural control decisions.







AugustinD


Posts:1886


07/17/2019 8:57 PM  
Posted By AugustinD on 07/17/2019 8:40 PM
The North Carolina Supreme Court ruled otherwise in 1975.
Oops; post-o. It was the North Carolina Court of Appeals that ruled thusly. The North Carolina Supreme Court has cited the aforementioned section of the 1975 appeals court decision.
KellyM3
(North Carolina)

Posts:1418


07/18/2019 8:38 AM  
The language is written into our covenants, which were written 11 years after the appeals court ruling in NC. Can't speak for the Charlotte, NC fence issue. Thanks for digging that out.
KellyM3
(North Carolina)

Posts:1418


07/18/2019 8:44 AM  
By the way, you're referencing building/house construction plans in that lawsuit, not additional amenities. The lawsuit seems to suggest that a developer can't have arbitrary aka "willy nilly" design approval policies while enforcing restrictive covenants.

Also, the Court of Appeals ruling covers a development that seemingly advertised as something of an affordable housing community and the lawsuit was brought by a person who submitted a house plan that was rejected BUT that the plan seemed to fit how the community was being advertised. The ruling was the developer didn't act in good faith in the enforcement of the covenants regulating pre-construction, house design rules.

Totally different standards. You gotta "cut n' paste" better than that.

https://law.justia.com/cases/north-carolina/court-of-appeals/1975/7513dc364-1.html
AugustinD


Posts:1886


07/18/2019 9:02 AM  
Posted By KellyM3 on 07/18/2019 8:38 AM
The language is written into our covenants, which were written 11 years after the appeals court ruling in NC.


Thanks for being civil. The case law (a.k.a. "common law" or "court-made law) trumps language in covenants saying the Architectural Committee-Board can be "completely arbitrary" or, as in the OP's case, saying, "Refusal or approval of plans... may be based upon any grounds... which is the opinion of and the sole and uncontrolled discretion of the Committee."

Covenants often also contain clauses ostensibly giving the Board and Declarant carte blanche to do whatever they want on one issue or another. These clauses always fail in court. The courts will throw out any HOA decision that is not "fair and reasonable," within the context of the particular situation.

Else ya know, some architectural boards would allow their HOA friends to, say, put burning crosses in their yard as a message to current HOA members and potential buyers about how the HOA feels about certain folks living there. This is a violation of federal anti-discrimination statute.

Hierarchy of laws at HOAs:
Federal law (statute and case law)
State law (statute and case law)
Municipal ordinances
Declaration
Articles of Incorporation
Bylaws
Rules and Regs
JohnC46
(South Carolina)

Posts:8550


07/18/2019 9:10 AM  
Section 10.3. Extent of Control:
No building, FENCE, wall sidewalk, obstruction, driveway or other structure shall be commenced, erected or maintained upon the property nor shall any exterior addition, change repair or alteration therein be made without the prior written consent of the Committee..... Refusal or approval of plans... may be based upon any grounds, including purely aesthetic considerations, which in the opinion of and the sole and uncontrolled discretion of the Committee, except as provided in Section 10.7 shall be deemed sufficient..

I do not see the ARB/BOD not wanting fences on some homes that backup to Common Grounds to be an arbitrary decision. I see it as being an aesthetic decision.

One way around this is the ARB/BOD decide on a specific style fence and insist all homes backing up to the common ground install this type fence.

AugustinD


Posts:1886


07/18/2019 9:21 AM  
Posted By KellyM3 on 07/18/2019 8:44 AM
By the way, you're referencing building/house construction plans in that lawsuit, not additional amenities. The lawsuit seems to suggest that a developer can't have arbitrary aka "willy nilly" design approval policies while enforcing restrictive covenants.


You probably need to read all the case law the decision cites, and then the subsequent case law that followed. You do not believe me, or won't anytime soon, but you have my position: Regardless of any implied permissions in the covenants for the Architectural Committees and HOA boards to be unfair and unreasonable, and "absolutely arbitrary," state law (and often federal law) in fact requires the HOA and its Architectural committees to be fair and reasonable, and not arbitrary, as they apply the covenants.

In 1995, the North Carolina Supreme Court cited the 1975 appeals court decision, in a case between a HOA and a member, adding:
"Therefore, the covenant is enforceable according to its terms, at least in the absence of any evidence that the ARC acted arbitrarily or in bad faith in the exercise of its powers."
"Defendants, however, produced no evidence that the ARC acted arbitrarily or in bad faith when reviewing defendants' application or when making its decision."

The North Carolina Supreme Court decision hinged on whether the Architectural Committee acted arbitrarily. (The Court found it did not.)

See https://law.justia.com/cases/north-carolina/supreme-court/1995/572pa94-0.html .

I sense you are on the board or have been on a board. Would you be fine if a majority of the Board and the Architectural Committee approved burning crosses on people's lawns, because your HOA's covenants say that the ARC can be "absolutely arbitrary"? If so, why? If not, why not?
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