Get 2 months of free community web site hosting from Community123.com!
Friday, October 18, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Wood fence denial
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
WillG
(South Carolina)

Posts:6


08/31/2019 5:51 AM  
This happened to us when we purchased our home:
1) We bought a new build home, placing importance on putting in a privacy wood fence. The on-site builder’s selling agent said we could do this if desired.
2) Before closing, the MC told us that the ARB was considering no longer allowing wood fences. We don’t know when the ARB first considered doing this. The MC was made aware of the upcoming closing on our home.
3) Right after closing, we obtained estimates and submitted the request form for a wood fence. Knowing the ARB’s position, we also requested a variance. It was denied. A picket style metal fence was the only viable option.
4) We later discussed this issue with the selling agent who was unaware even then that the requirements had changed or that a change was even being considered.

In the CCR basis of approval section, the ARB can deny a request for a multitude of reasons. They can change the architectural guidelines at any time for any reason. But there is a passage where it states that any denial must be done in a reasonable manner. We feel this did not happen because the ARB was only considering the requirement change during the period when we could not request what was allowed at the time. It could also be argued that the ARB (or MC) should have notified the selling agent of their intentions where it might have influenced the decision to buy our home.
PestY


Posts:0


08/31/2019 6:04 AM  
Your WRITTEN contract (ie. Covenants and Restrictions) overrides anything the 'sellers agent' SAID.

a judge may, or may not, rule differently



CAVEAT EMPTOR
MelissaP1
(Alabama)

Posts:8601


08/31/2019 6:07 AM  
Well... Technically you were NOT owners until after you closed. So you did get a heads up through the MC that changes were going to happen after closing. After you closed and became a member, that is when needed to send in your paperwork for approval of construction.

I can't blame the seller's agent or the MC as they did give you a heads up the ARC was in process of changing the restriction. The ARC and then the Board will have final word. If you install the fence anyways, then the HOA can remove the fence and send you the bill for the removal.

A HOA it's all about the approval not the sorry....

Former HOA President
WillG
(South Carolina)

Posts:6


08/31/2019 8:23 AM  
We were not aware that changes were going to happen after closing. There was no time frame given. We could only wait then submit the request after closing, one week after the MC discussion. This is why we requested a variance.

There is at least one other homeowner who learned of the same change after making the purchase and before closing. Additionally, a different homeowner decided to go ahead with the wood fence anyway. It still stands today, without any HOA action. And none is likely.

We installed the metal fence.

Question:
Should restriction changes be accompanied by an approval or revision date?





JohnT38
(South Carolina)

Posts:117


08/31/2019 9:04 AM  
"2) Before closing, the MC told us that the ARB was considering no longer allowing wood fences. We don’t know when the ARB first considered doing this. The MC was made aware of the upcoming closing on our home."

You were put on notice of the possibility and you decided to gamble and go ahead with the purchase.

" We were not aware that changes were going to happen after closing."

See your comment above. You very well knew this might happen. This is a weak argument.


"There is at least one other homeowner who learned of the same change after making the purchase and before closing."

If he hadn't closed yet then and he didn't make the purchase. You knew the risk and closed on your home with eyes wide open. If you decide to fight this I would advice that you don't play the victim.
WillG
(South Carolina)

Posts:6


08/31/2019 1:05 PM  
What is the cost of canceling a home purchase after you sign the purchase agreement?
JohnC46
(South Carolina)

Posts:8730


08/31/2019 1:14 PM  
Posted By WillG on 08/31/2019 1:05 PM
What is the cost of canceling a home purchase after you sign the purchase agreement?




I depends on a lot of things, the main one being how much money you put down. If you want out, hire a lawyer to get you out.
CathyA3
(Ohio)

Posts:459


08/31/2019 1:31 PM  
Posted By WillG on 08/31/2019 1:05 PM
What is the cost of canceling a home purchase after you sign the purchase agreement?




Check your purchase agreement to see if there is a clause talking about default or other failures to live up to the terms of the contract.

Based on my experience working for a new home builder, the seller may impose some sort of financial penalties such as keeping some or all of any down payment(s) made to date. You may or may not need a lawyer. You'll at least need to talk to the seller (through your agent, if you have one). One point in your favor is that you haven't just changed your mind - you found out after you'd signed the contact that something you wanted and the seller's agent said that you could have (the fence) was actually not allowed. My feeling is that the seller has at least some responsibility here, although it sounds like it was a timing issue rather than deliberate misinformation.

Hopefully the seller is mindful of his reputation and won't hang you out to dry. But keep in mind that the seller also incurred costs during this time and has valid reasons to be compensated for some or all of them. (This is one reason why penalty clauses exist.)
CathyA3
(Ohio)

Posts:459


08/31/2019 3:40 PM  
Posted By CathyA3 on 08/31/2019 1:31 PM
Posted By WillG on 08/31/2019 1:05 PM
What is the cost of canceling a home purchase after you sign the purchase agreement?




Check your purchase agreement to see if there is a clause talking about default or other failures to live up to the terms of the contract.

Based on my experience working for a new home builder, the seller may impose some sort of financial penalties such as keeping some or all of any down payment(s) made to date. You may or may not need a lawyer. You'll at least need to talk to the seller (through your agent, if you have one). One point in your favor is that you haven't just changed your mind - you found out after you'd signed the contact that something you wanted and the seller's agent said that you could have (the fence) was actually not allowed. My feeling is that the seller has at least some responsibility here, although it sounds like it was a timing issue rather than deliberate misinformation.

Hopefully the seller is mindful of his reputation and won't hang you out to dry. But keep in mind that the seller also incurred costs during this time and has valid reasons to be compensated for some or all of them. (This is one reason why penalty clauses exist.)




Wait, I'm confused - did you close on your home or not? If so, then you can't cancel the purchase. You own the home and must sell it.
WillG
(South Carolina)

Posts:6


09/01/2019 4:28 AM  
I’m new to this site and finding when I click “Reply,” my message is not directed to the post I am replying to. This can lead to confusion as to my meaning.

CathyA3:
It was a rhetorical question to another reply because I know we could not back out (financially speaking). We did purchase the home as stated at the top and closed on it as indicated. I was highlighting the timing of events for which we had no control and trying to be as brief as possible. By the wording of the CCR's, we thought our variance request had merit and that it might not have been given fair consideration. This is the gist of the discussion.

MelissaP1:
We were not given a time frame for the changes from the MC. It was certainly after closing, but could have been the next day after our discussion. We did not have contact with the MC again until after closing.

It seems to me that a board member with knowledge of a possible or recent restriction change would at least, (want to) notify the entity who is selling a home, be it the builder's agent or private seller. A potential home buyer is putting up a lot of money. Unless one is familiar or had experience with HOA communities, knowing what to ask, what documents to obtain, and most importantly, finding out if there are possible or recent changes to any documents is not necessarily at the top of a home purchaser's list.

Our BOD throws around the term, transparency. This transparency should also apply to my discussion here.

CathyA3
(Ohio)

Posts:459


09/01/2019 5:43 AM  
Posted By WillG on 09/01/2019 4:28 AM
I’m new to this site and finding when I click “Reply,” my message is not directed to the post I am replying to. This can lead to confusion as to my meaning.
...
It seems to me that a board member with knowledge of a possible or recent restriction change would at least, (want to) notify the entity who is selling a home, be it the builder's agent or private seller. A potential home buyer is putting up a lot of money. Unless one is familiar or had experience with HOA communities, knowing what to ask, what documents to obtain, and most importantly, finding out if there are possible or recent changes to any documents is not necessarily at the top of a home purchaser's list.

Our BOD throws around the term, transparency. This transparency should also apply to my discussion here.





If you click on the Quote link at the top right of the post you're replying to, it will display that post at the start of your reply, as above.

Re: dealing with possible restriction changes and on-going sales, board members have to be careful about inserting themselves into the sales process. Unless something in the CC&Rs gives the board the right to do so, they risk being accused of interfering or hindering the process and being taken to court. The cost of landing in court will fall on all the homeowners, so knowledgeable board members tread cautiously.

Sadly for would-be buyers, the burden is on them to understand what it is that they are purchasing, and even with real estate disclosure laws that can be hard to do. In addition, when a board talks about transparency, they're talking about their obligations to the members of the HOA. Potential buyers are not members, although most of them go on to become members. As long as they are complying with applicable laws and their fiduciary duties, they're doing their jobs.

One of my main issues with HOAs (and condo associations, which can be worse) is that no one understands what they are buying unless they've lived in an HOA before. And frankly, you don't truly understand what you own until you serve on the board for a few years and become responsible for running the place. Most HOAs are incorporated and are subject to a boatload of laws that the average buyer knows nothing about. I'm not sure what to do about this knowledge gap. Real estate disclosure laws help, but the whole corporate structure, and the fact that homeowners become financial and legal partners of a community full of strangers, is something that probably wouldn't occur to most buyers.
JohnC46
(South Carolina)

Posts:8730


09/01/2019 8:54 AM  
Will

Your case is weak as you readily admit, you knew fencing regulations were going to change yet you went ahead with your purchase.

As for the other wooden fence(s) you do not know the details such as did they get permission before the rules changes? Has the HOA taken them to task? Your like saying to the cop, but we were all speeding. Why stop just me.
Please login to post a reply (click Member Login on the menu).



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement