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Subject: Denial of ARC request for enclosed fence
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JohnT38
(South Carolina)

Posts:117


10/02/2019 5:02 PM  
Below is an email that I sent our property manager tonight. It explains my question/concern. I thought I would post it here and see if anyone has some advice or suggestions on the topic.


Eric,

We could really use some advice from you or someone else from your company. We have an issue with a resident that submitted an ARC request to build an enclosed fence that would be behind their condo. She originally made the request last year with the previous Board. Her request was denied. Once the latest Board was formed she submitted the request again. The ARC committee recommended that the request be denied and the Board officially denied the new request. She will be getting notice of the rejection along with the following rule that it would violate:

"The Committee believes it is not the intent of the Declaration for Condo residents to install fences on the common area property. Section IX, A. 2. Includes “no residence owner nor any other person shall bring any action to partition or division of the whole or any part of the common areas”. Lax enforcement of this and other declaration principles may have allowed for fencing beyond the unit’s footprint in the past. A consensus of the Committee believes this must be corrected going forward."

The problem is this homeowner has been borderline hostile about our decision and argues that previous Boards approved fences. As far as I know, it has been a long time since any enclosed fence was approved. It is our position that these previous approvals where made in error and that we are not bound by the mistakes of previous Boards as long as the current Board is consistent with it's policies.

I'm not asking for you to give us legal advice but I would like to know what you think about this based on your experience with other communities. Are we on firm ground denying this request? Any thoughts you have on this matter would be appreciated.
SheliaH
(Indiana)

Posts:2701


10/02/2019 5:45 PM  
First, don't worry about the lady being borderline hostile - unfortunately that's part oflife, whether you live in a HOA or not. You will always have people who think as of laws apply to everyone else but them.

I think what you're doing is fine - you quoted the CCRs, acknowledged inconsistent application of said rules in the past and this board will now enforce them as written. That may not make her happy, but if she wants to throw down in small claims court, tell her to bring it on and let the judge have the final say.

I do hope your board did its due diligence in telling everyone about the new emphasis on rule enforcement and why it's important. The people with fences that went up under the previous boards should probably be allowed to keep them,but a notice sent to them saying they will not be allowed to rep!ace them - when the fence starts falling Part, it must be removed at their expense.

You may well get additional pushback from others, but unless and until people want to do this right and vote to amend the CCRs properly to allow fences, the board must be fair and consistent in enforcing the rules. If you can stand your ground (in a good way), people will understand. If the vote for get another board, so be it - you can only do your best. Let others deal with the chaos, if they have the stomach for it. Good luck!








JohnT38
(South Carolina)

Posts:117


10/02/2019 6:12 PM  
Thank you Shelia! We are having a community meeting Nov 2rd and rule enforcement, and the reasoning behind it, is on the agenda. I appreciate your feedback.
JohnC46
(South Carolina)

Posts:8730


10/03/2019 7:29 AM  
JohnT

She has you running which she wants to do. Never wrestle in the mud with a pig. The pig enjoys it and all you get is dirty.
ND
(PA)

Posts:349


10/03/2019 8:17 AM  
I agree that it is appropriate to deny this request based on the "rule" cited. I assume you have double and triple checked your documents to ensure that nothing even remotely permits owners to install fencing.

You could also consider substantiating your current decision by referencing the previous denial (by the prior Board) of the same request.

Finally, I might suggest adjusting your statement that "A consensus of the Committee believes this must be corrected going forward." This could be interpreted in a couple of different ways: 1) That you may seek to have existing fences removed, or 2) That the existing fences will be allowed to stay (because they were improperly approved by prior Boards) but that no other fences will be approved.

If this homeowner interprets this that you may seek to have existing fences removed, then will continually hound you on this statement, expecting over the years to see the fences disappear (even if your intent with the statement is that existing fences can stay but new ones will not be approved.
JohnT38
(South Carolina)

Posts:117


10/03/2019 8:18 AM  
John,

I agree with your comment but I'm being a little more cautious with this one. Her personality and her comments make me question if she will take this to court. I realize there are times when you simply have to dig in and draw a line in the sand and I'm prepared to do that, but, I just wanted to see if any of you had any words of wisdom that I hadn't considered.
CathyA3
(Ohio)

Posts:459


10/03/2019 8:31 AM  
The real problem is that the owner wants to claim a portion of the common elements for her exclusive use. Legally, all owners have the right to use the common elements, and owners may not interfere with others' rights in this regard. (Read the sections of your governing documents where the common elements and unit owners' rights are defined.)

The board/architectural committee would have been out of line if they had approved the request for a fence, and would very likely have been challenged by other owners. As Sheila said, if the person who wants a fence threatens to sue, tell her to bring it on - she's going to lose.
CathyA3
(Ohio)

Posts:459


10/03/2019 10:21 AM  
Further thoughts:

If we were facing this issue in my community - where the board was being asked to approve something that was clearly a violation of our governing docs but which had been approved in the past - we'd run it by our lawyers to see what they say.

In general I don't approve of reversing previous board decisions unless they were clear mistakes, but that's what you're looking at now. The question is: just how serious a mistake, and would the end result be worse if you tried to rectify things now? I don't have a feel for how likely this apparently simple thing is to blow up into something bigger (I don't mean just the unpleasant owner, I mean the legalities of it).

Just out of curiosity, what are your buildings like? I'm assuming that they're townhome style (neighbors only on the side) rather than apartment style (neighbors above and below). If the latter, it's more obvious that people don't personally own the yard behind their unit.
CathyA3
(Ohio)

Posts:459


10/03/2019 10:51 AM  
And one more thought, and I promise to pipe down after that:

I'm also assuming you're worried that a court may decide that previous board decisions make the "no fence" restriction unenforceable. However, if your governing docs are like mine, this is not a restriction - it involves ownership and property rights. I'm not a lawyer, but I would think that these would be a lot less flexible than the restrictions that are spelled out in your docs.

Good luck. It's annoying that something which is so clear according the CC&Rs (assuming yours are a lot like mine) and so not open to interpretation was messed up by previous boards.
JohnT38
(South Carolina)

Posts:117


10/03/2019 11:43 AM  
Yes, they are side by side condo's and I did have concerns about if she could argue selective enforcement. Thanks for your feedback Cathy!
GenoS
(Florida)

Posts:3234


10/03/2019 3:27 PM  
It can get complicated. Many CC&Rs have language to the effect that permitting one violation to persist does not constitute a waiver for future violations and that the association retains all rights to enforce in the future. Then you have violations that can be permanently allowed to exist if the statute of limitations on enforcement has run out. Does enforcing a new violation in the face of a similar violation that has aged out via the statute of limitations constitute Selective Enforcement? Probably not, but it's expensive to go to court and find out. Which is another good reason to enforce all violations equally and fairly from Day 1.
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