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MicheleD
(Kentucky)

Posts:1575

04/20/2008 8:35 AM
I didn't think for one minute that they were enforcing because they "didn't like it." " Policy should be enforced from the get go and this kind of thing could be avoided." And this is exactly what it appears they are doing. And I see no problem with them following through on their enforcement.

BradP
(Kansas)

Posts:1742

04/20/2008 8:39 AM
Posted By MicheleD on 04/20/2008 8:35 AM I didn't think for one minute that they were enforcing because they "didn't like it." " Policy should be enforced from the get go and this kind of thing could be avoided." And this is exactly what it appears they are doing. And I see no problem with them following through on their enforcement. Michele: question for you...are you 100% positive that every member of that community that changed their fence color submitted an ARC form and got it approved? If so I will concur with you, if not then I don't buy the fact that it wasn't the color that alerted them. If it had been painted one of the other colors in the neighorhood it wouldn't have been an issue, I base that on what I have heard from that person so far. They have no idea how all the colors got to be what they were, but they agreed that a light hue what appropriate.

SueW1
(Texas)

Posts:26

04/20/2008 8:43 AM
Specifically addressing the matter of a FINE for painting the house a different color. the fine in and of itself is selective enforcement, if no one else got approval. As for the color, that is a different matter. Its the approval that should not be a fine. If the restrictions at the time builder or homeowner purchased their property are already set, then they are indeed in violation. NO grandfather clause should even be considered. This is a lazy way of running a home owners association. Go back in records and see when those homeowners purchased the homes. There are ways to getting the homeowners up to code. Far too many times the board treats the homeowner like they are a tenant. Use fair judgment and time lines. There is no need to strong arm one homeowner at this stage. I know, a volunteer job like this can be difficult at times. Forming a welcome wagon for new residents could give an opportunity in avoiding future problems with new owners.

MicheleD
(Kentucky)

Posts:1575

04/20/2008 5:57 PM
I don't have to be 100% positive about anything. And that's my point. And it's a huge assumption to claim that just because a color is "noticeable" that it was not liked. Liking or not liking the color has nothing to do with whether or not it needed prior approval before being painted. If approval is not required if the fences are painted the previous color, then it's very likely that there might have been several people who painted in a near-close color to the original, but they did not get "noticed," or "reported," simply because it's much more difficult to "notice" the color shift in light tan and white, for example. Heck, for all the average board member knows, the fence might have been the tan originally but faded or bleached whiter over the years. That fence, newly painted, may not get "noticed." Or a fence that got painted white that had previously been a shade of tan, again, not a huge color shift where one or another board member would necessarily "notice," or where a neighbor didn't figure maybe the tan shade USED to be white but was aged over time. Now, someone goes and paints, WITHOUT PRIOR APPROVAL, a WHITE fence DARK BROWN. I think even the most unobservant of board members would do a double-take on that one. So, the course of action to take would be to make the homeowner return the fence to the original color, then START OVER. If they want the fence brown, then submit an ARC Approval request for brown. If brown is not an "approved color," then the resident is more than welcome to do the needed legwork to get the color approved through the neighborhood. Such as, obtaining a petition to call for a vote to approve brown as an acceptable fence color. Could the board do it? Sure, but the board isn't the one who wants the new color. The fence is in violation, regardless of how many others might have "slipped by" unnoticed. SHOULD the board have been aware of others that MIGHT have painted without prior approval? (remember, it only needs prior approval if it's going to be a different color than it was originally). Not necessarily. The resident would have to prove that the board SHOULD have known EACH AND EVERY repainting that was a different color, and I don't know how that could possibly be done. If the homeowner wants to come to the board with a list of homes they feel are in similar violation, then they are more than welcome to do so. Until then, well, again, does your board memorize or have on file the color schemes of all the homes in your area? Do they go out on a weekly basis and inspect to make sure that no colors have changed? That's a pretty outrageous standard for enforcement, and I don't think that it's reasonable to assume that any board should or would have to do that. So, again, should the board have been aware of any homes that repainted within a similar, but not exact, color scheme as the previous one? If the answer is "yes," then how? It's pretty obvious that a brown fence would stand out more and be noticed. Not necessarily because it "offends" anyone or because anyone necessarily dislikes the color, but by the simple fact that previously THERE HAD BEEN NO HOMES WITH BROWN FENCES YESTERDAY AND TODAY THERE IS ONE. Reasonable to assume then that the board would notice the "violation."

BradP
(Kansas)

Posts:1742

04/20/2008 7:31 PM
Michelle: Thank you for seeing my point, if as you said that several homeowners got away with painting their fence a different color without approval and this homeowner is being brought up on that same thing then it is selective enforcement. Colors have nothing to do with it, fact of the matter if you change the color of your fence you need approval and if you are going to bust one, you need to bust all. I can understand a couple slipping through the cracks. But ignorance by the board is no excuse as is ignorance by the homeowner. As I have said before, and will say again, the howeowner was wrong to not ask permission. I am not siding with them, just offering a different point of view.

GlenL
(Ohio)

Posts:1304

04/21/2008 2:13 AM
Brad it's only "selective enforcement" if others painted their fence dark brown and the BOD knowingly ignored them and only enforced on this homeowner. The OP stated that it was in their CC&R's that the fence could be painted the SAME COLOR without ACC approval; now if the fence was originally dark brown then the BOD doesn't have a leg to stand on.

MicheleD
(Kentucky)

Posts:1575

04/21/2008 3:32 AM
Brad said: "Thank you for seeing my point, if as you said that several homeowners got away with painting their fence a different color without approval and this homeowner is being brought up on that same thing then it is selective enforcement." We are not seeing each other's point at all. It's only selective "enforcement" if the board KNEW of the others or SHOULD HAVE KNOWN and did nothing. We have no way of knowing: a) that any who painted their fence a different color did not get prior approval. b) that the board was aware that any who did paint a different color did not get prior approval. c) that any who painted their fence a different color did not get fined. You can't enforce against something of which you are not aware; and you can't assume that others have or have not been enforced against. Your point seems to be that any infraction that is not enforced against, ever, in each and every case is "selective enforcement." My point is that it's only selective enforcement if the board knew or should have known about prior violations and did nothing.

DJ1
(Ontario)

Posts:441

04/21/2008 4:57 AM
Don't worry Michele, the sun will fade the dark brown and soon it will be a lighter hue.

SueW1
(Texas)

Posts:26

04/21/2008 7:45 AM
Our by-laws have specifics but does not exclude violations that have been discovered after a period of time. So, we would have to certainly address the HO's who did not get approval as well. What is NOW relevant the boards knows about them. There should be equal application of enforcement when any violation (s) have occurred.

BradP
(Kansas)

Posts:1742

04/21/2008 9:57 AM
Posted By GlenL on 04/21/2008 2:13 AM Brad it's only "selective enforcement" if others painted their fence dark brown and the BOD knowingly ignored them and only enforced on this homeowner. The OP stated that it was in their CC&R's that the fence could be painted the SAME COLOR without ACC approval; now if the fence was originally dark brown then the BOD doesn't have a leg to stand on. Glen: Not correct...color has nothing to do with. Yes the CC&R's state you don't need approval to paint the same color. But you do need approval to change color, even if it is to a another color that has been approved in the neighborhood. That happened with other homes it sounds like. Michele's answer of there is no way for the board to know doesn't cut it. Ignorance is no excuse, it is the job of the board to know these things, if they don't have a system in place then they need a management company who can do it for them. Sure a couple will fall through the cracks depending on the size of the community, but even then it isn't an excuse. To me the board has been lax on this matter. They need to be proactive and tell the community what colors are acceptable. It doesn't excuse the homeowner from changing colors without permission, but in this case if the board is going to cast stones at them they need to look in the mirror first and maybe not cast as many.

BradP
(Kansas)

Posts:1742

04/21/2008 10:02 AM
Your point seems to be that any infraction that is not enforced against, ever, in each and every case is "selective enforcement." My point is that it's only selective enforcement if the board knew or should have known about prior violations and did nothing. So, in your opinion a good defense for any hoa board in court over selective enforcement is "we didn't know about it"...Let me know how that goes. The law seems to be pretty clear that ignorance is no excuse, the board is in charge of overseeing enforcement in their neighborhood...if they can't figure it out then they need to find someone who can help them. My point in this matter is answering the question that was posed, is this selective enforcement...with what little information there is it seems to be that way to me. The board seems to bury its head and ignore changes if it conforms to their color scheme, even though advanced permission is required. Once someone steps outside the color scheme they pounce on them. Remember the CC&R's don't define what colors are acceptable, they define that permission is needed to change.

JackieB
(California)

Posts:106

04/21/2008 12:28 PM
OMG.......I love this web site. If I had opened it over the weekend I might not have gotten my grandkids to their swim meets. Thanks to each and every one of you for your sincere opinion. This needs closure so let me try. 140 homes approx. 10-20 feet apart. at least 140 fences(with some lots having two.) Our paint pallet books that we(me) keep to share upon request have the current acceptable home/trim colors and samples of the vista tan for fences. But nowhere is it in writing that Visa Tan is fence color. All fences,except this one gate, are white or pale tan (Vista). Fence colors have never been disputed until a gate popped up dark brown, like See's chocolate suckers. Michele has repeated this over and over and very accurately.......no ARC form, not the same white color as prior gate, no fine rendered yet......and time has been allocated for them to determine if others feel the same way(dk colors =ok). Web site with 52 members and only one opinion offered, in favor of the existing white/tan which have existed through numerous BODs and ARCs. If they return next HOA mtg with a serious show of interest/suppport.....we/ARC committee will post a survey on website and also send out "newletter" to gather opinions. WE are a user/friendly BOD, although several of you would dispute that. We value harmony among neighbors equally important to "property values", paint colors, etc. Our HOA web site was developed on "our watch" specifically to allow this sort of discussion. Interest hasn't peaked to this extent but most feel appreciative of the effort to be fair/consistent, etc. Again, My deep appreciation to each of you for sharing your views and attempting interpretation of my frustration. Do I dare post "the conclusion/decision" when all is said and done??? Extra appreciation to Michele who was "right on" with each of her postings. Let's party !!!!! Jackie

MicheleD
(Kentucky)

Posts:1575

04/21/2008 2:10 PM
BradP: "So, in your opinion a good defense for any hoa board in court over selective enforcement is "we didn't know about it"...Let me know how that goes. The law seems to be pretty clear that ignorance is no excuse, the board is in charge of overseeing enforcement in their neighborhood...if they can't figure it out then they need to find someone who can help them. " First of all, you can play fast and (semi-)wise with my words, but I did NOT say a good defense was "we didn't know ..." especially for "any hoa board." I said this: ". . .that it's only selective enforcement if the board knew or should have known about prior violations and did nothing." The keys: SHOULD HAVE KNOWN, and once known, DID NOTHING. And I'll tell you how that defense goes. It works quite well, thank you. Because that is exactly what our board has used as a defense on a few issues. We are quite sure there are random infractions and violations of which we are not aware and can not reasonably be expected to be aware that occur throughout the subdivision. Take on-street parking overnight. If a resident on a cul de sac that no board member lives on or travels on parks his commercial vehicle, a van, every night at 12:00 midnight on the street and then removes it before, say, 8:00 a.m., before the first board member who work leaves the subdivision, AND NOBODY REPORTS IT, how could the board reasonably be expected to be aware of that violation? So we send a notice to a guy on ANOTHER street where the violation has been reported to us. He stakes out the neighborhood and finds that this other house never got a notice. He screams 'selective enforcement.' He forces the issue by challenging the violations all the way to a court case. Guess who won? If you read several of my previous posts on our history with challenges, you will know that not only have opposing attorneys agreed with our position (after first making the claim), but in the few cases where it was carried all the way to a judge, the judge agreed with it, too. We have records that show every single REPORTED violation was enforced against. We concede that there might have been violations of similar CC&Rs that we did not enforce against, because there is no way we could know or SHOULD HAVE BEEN ABLE TO KNOW that the violation existed. If the guy with the commercial van lived right next door to a board member, then it's a little harder to claim we did not know or that we couldn't have known. It's not humanly possible for a board to be AWARE of every single infraction that occurs within a subdivision. In the cases where a board KNOWS or SHOULD HAVE KNOWN about an infraction, and still did NOTHING, they will have a hard time defending against a selective enforcement challenge. SHOULD the board have reasonably been aware of the original color of ALL fences (as it turns out, 140 of them), and SHOULD THEY HAVE REASONABLY been aware of each and any time one was repainted -- and SHOULD THEY HAVE REASONABLY been aware that the color shift occurred, when the light colors are very close in tone and hue? I would argue no, they could not have reasonably been aware that a light tan fence on a street they seldom travel is now white. How would it become noticeable to them without it being reported by someone who DID know? On the other hand, if for a decade NO fence in the subdivision is BLACK (or DARK BROWN), and suddenly one shows up that is, they should reasonably be aware that the fence color was NOT ORIGINALLY BLACK/BROWN. Then they not only need to enforce against it, they have a fiduciary duty to enforce against it! Even if they LIKE the color! IF they knew the other colors were NOT the original and DID NOTHING, then that is selective enforcement, but based on what was shared with us here, I don't see that is what happened.

BradP
(Kansas)

Posts:1742

04/21/2008 2:14 PM
we will agree to disagree then...

MicheleD
(Kentucky)

Posts:1575

04/21/2008 2:22 PM
We agree to disagree: No doubt. However, keep in mind, my position has already been judge tested. We had one board member who was adamant that he did not ever want to file a formal notification on any violations he notices because he didn't want to get in the middle of anything (even though our notification process is anonymous). After speaking with the attorney of his mother's HOA (over a similar issue in her subdivision, having nothing to do with us), he changed his mind. He did not want to put the board at risk of "selective enforcement" because there were violations on his street that he SHOULD HAVE BEEN AWARE OF, and yet did nothing. He has a fiduciary responsibility as a board member and by not reporting violations that he knew of, he was putting the integrity of our documents at risk and our ability to enforce at risk as well. After that he just has his wife make the notification. As a result, later down the road, when we got into the challenges to enforcement that I mentioned earlier, it was much easier for us to support our position.

BradP
(Kansas)

Posts:1742

04/21/2008 2:25 PM
As I said we will agree to disagree...remember I never once said this homeowner was justified in what they did.

SueW1
(Texas)

Posts:26

04/21/2008 2:50 PM
lets say anyone of us here are standing before a judge.... the opposing attorney asks you....... were their other homeowners who painted their fence a different color than what is on the cc&r and did not get approval. What is your answer! Do you say, yes Do you say, no or do you say well, yes but they are similar to what colors we have in the cc&r and they don't stick out like a sore thumb.

JackieB
(California)

Posts:106

04/21/2008 3:44 PM
I would honestly respond that our CCR's don't state a color; simply the same color........... and I wasn't living here when 80% of the fences were painted and repainted and rebuilt and repainted, and repainted. (20 year old homes.) Jackie

MicheleD
(Kentucky)

Posts:1575

04/21/2008 4:53 PM
I would answer honestly: "To the best of my knowledge, no."

SueW1
(Texas)

Posts:26

04/21/2008 5:11 PM
based on the information in this thread, would you still answer this way?

MicheleD
(Kentucky)

Posts:1575

04/21/2008 5:33 PM
Without question. Based on what is known from this thread, I would still unequivocally answer, "To the best of my knowledge, no." Even in the limited mention the OP gave of giving approval of a light tan for a vinyl fence, the mere fact that they gave "approval," implies to me that Arch Approval was sought -- and granted -- for a different color. The key, in my opinion, on this particular case is the failure to obtain prior approval if changing the color. It doesn't say they can't approve a different color, only that if a different color is used it has to be approved first. So, yes, my answer would STILL be "To the best of my knowledge, no."

SueW1
(Texas)

Posts:26

04/21/2008 6:00 PM
How people think and see things sometimes are completely in contrast to what the facts are. Fact #1 HO did not get permission to paint his fence a different color. Fact #2 HO did not paint his fence according to the CC&R's Fact #3 Other HO's did not get permission to paint their fence a different color Fact #4 Other HO's did not paint their fences according to the CC&R's The facts are there were others who did not get approval. I would have to answer yes!

MicheleD
(Kentucky)

Posts:1575

04/21/2008 6:55 PM
" Fact #3 Other HO's did not get permission to paint their fence a different color Fact #4 Other HO's did not paint their fences according to the CC&R's " I do not know that others didn't get permission to paint their fence a "different" color. I don't agree that those are "Facts" that we've been presented. I do not know that others didn't paint their fences according to the CC&Rs. It was simply reported that there are multiple homes with varying colors of fences, with no history whatsoever when, how, or why they were repainted, much less whether any, all or none were repainted a DIFFERENT color than what they originally were. We don't even have a history of when each and every fence was erected. We don't know what the original colors of the repainted fences were. We do know that at least one who replaced with a vinyl fence got "approval" for a light tan color, yet we really don't know what color it was to begin with. All we KNOW about the CC&Rs is that in order to paint it a color different from what it currently is Architectural Approval is needed PRIOR to painting. There is no indication that you can ONLY paint it the same color. We can have some degree of understanding that if one must get "approval" BEFORE painting a different color that different colors CAN be approved. BUT one cannot just repaint a different color without getting the approval first, so, it's not that the color is out of compliance in and of itself, it is that the FENCE is out of compliance because APPROVAL for the different color was not obtained first. So if the opposing attorney asks me if any other fences that were painted a different color than the original WITHOUT FIRST GETTING APPROVAL TO DO SO were NOT ENFORCED AGAINST, I would STILL, based on what I know, have to say: To the best of my knowledge, no. If you would answer yes, then please, tell me which ones? We can't do that because we have no idea IF any have been much less which ones they were.

TracyT
(Maryland)

Posts:220

04/22/2008 9:32 AM
Did the Board forget to write down the standard color scheme? Yes, but for the PAST 20 YEARS the assoc. has a defined color scheme , which is white and light tans (regardless of fading phase of the paints or how it actually came about). So let’s move on. One HO wants a color outside of the scheme of what is established. While the Board has the authority to approve the dark color why should they when there is an established scheme? They duly heard the appeal and gave ample opportunity for HOs to seek membership support, which is also within their authority, not to mention (as discussed here many times) a much better way to establish rules and standards. They even went so far as to set up a community survey! I just don’t see how you can say they have been unreasonable or call that selective enforcement. Tracy

JackieB
(California)

Posts:106

04/22/2008 10:28 AM
Michele and Tracy see it as I do. Let's give it a rest and see how it plays out here in So. Calif. It has been a stimulating topic and I admire each of you for responding. Now everybody kiss and make up!! None of this is worth popping an aneurysm.

BradP
(Kansas)

Posts:1742

04/22/2008 10:37 AM
Jackie: Out of curiousity you mentioned in your first post that you were waiting to fine them, to give them an opportunity to drum up support. What is the fine for? If it is for having a wrong color other than approved why not just make them repaint?

SueW1
(Texas)

Posts:26

04/22/2008 10:41 AM
I am not unhappy with the debate at all. This seems to be a good debate and Micheled is debating wonderfully and explaining her position. I see no harm in this. But, to respond to Micheled points. ;) I do not know that others didn't get permission to paint their fence a "different" color. *okay, this I can agree with you on. So, would it not be accurate to say, we do not have records of any approvals other than the vinyl fence?! I don't agree that those are "Facts" that we've been presented. * lol this is certainly clear. I do not know that others didn't paint their fences according to the CC&Rs. **True!! I agree, but we do know that they did either!? I don't know what vista tan looks like, it seems from what was posted Jackie does not either. But, I do know that tan is a lighter shade of brown. So, factually we don't know much about the colors except what is now existing. *Since there is no history or records for the different color fences, this where I have to step back. I have to ask myself, what do I have to go on other than what is presented. ***This is why I would not give a fine to the brown fence HO. However, I would give the HO time to repaint in compliance to what was determined acceptable. If they do not paint in the reasonable time limit, then fine him.

JackieB
(California)

Posts:106

04/22/2008 10:51 AM
Yes, the fine would be for not correcting the painting of their gate. HO's are given at least a month to "fix-it" or to notify the PM that they want to be heard at the next BOD mtg. They asked to be heard so they came to the mtg. When the ARC rules were reviewed for them, they were very upset (we've all seen it).......and clearly stated they wanted us to make them an exception.... (ie) waive the rule for them because they have "put alot of money into this home." So when we defined our BOD role and ARC rules they took a turn that maybe everyone wants dark colors but the BOD? So we gave them time to pursue that venue. They didn't return with support at our last mtg....but said it was because they were unclear on what was needed. (???) So we were quite specific, as we were at the prior mtg, and extended the time until our May mtg. They will be repainting their gate.......or we will have to have a legal letter sent, and eventually handle it that way. Jackie

JackieB
(California)

Posts:106

04/22/2008 11:00 AM
The HOA is 20 years old and probably had more that 10 Property Management Companies that followed these issues. What would be the time limit that ARC applications needed to be kept? As most of us know, when a PM is released from employment,.....it is usually under very negative reasons so who sends what where?? Makes me crazy to even go there. We are in no hurry to fine.... and honestly will seriously consider change (ARC to BOD) if they should show support. But the rubber meets the road next mtg. Jackie

SueW1
(Texas)

Posts:26

04/22/2008 11:28 AM
thanks jackie. I am one who asks lots of questions. And when debating an issue, it helps me to understand how to see issues as well as other perceptions.

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