Get 6 months of free community web site hosting from Community123.com!
Monday, October 20, 2014
HOA Websites by Community123.com (National Community Website Provider)
We built HOATalk and we'll build your community website for free!  Click here for information on a free trial website.
Community Associations Network (National HOA Reference Library)
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.
Subject: 4-Foot Vs. 6-Foot Fence
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
DeniseC1
(Pennsylvania)

Posts:25


04/23/2008 6:41 AM  
Our HOA recently changed the height allowance of our fences from 4-foot to 6-foot. I'm really confused. First of all, our bylaws have no mention of fences at all except to say they should be in the rear of the property and kept in good condition.

In August 2007, the board handed out a rule book. They are following this rule book and I'd like to know if this is legal. I visited my local courthouse and the bylaws have not changed since the original version of 1975.

I recently contacted our PM informing her of a homeowner who erected a 4-foot fence; not 6-foot. I explained that I was not complaining about it, but wanted to do the same. I feel it's ridiculuous to suddently require a 6-foot fence since all, and I mean all, of the fences are 4-foot. I would prefer to see over my 4-foot fence as opposed to living in Fort Knox with the 6-foot. I don't know why this change came into effect. I must have missed that meeting.

The PM is now asking me to give her the address of the offender and they will be forced to take it down; which personally, I don't feel is my job. The PM informed me that she cannot file a complaint, only homeowners can. I'm not willing to do this considering the past experience I've had with harassment by a neighbor I complained against. I also don't think it's fair that if "I" don't file a complaint, the homeowner gets to keep their 4-foot fence and I am forced to put up a 6-foot fence.
BradP
(Kansas)

Posts:2640


04/23/2008 7:02 AM  
Denise:

First you need to find your CC&Rs and see if there is any mention of fence height in them, they should be recorded at the county office. Ours for example, say that fence height needs to be 6 feet. If they don't say anything then I believe your board has the ability to make reasonable rules for the good of the neighborhood.

The big questions is, if you already have a lot of 4 foot fences in the neighborhood is it reasonable to change it now to 6? My thought is no, unless there is an underlying factor that we are not aware of.
DeniseC1
(Pennsylvania)

Posts:25


04/23/2008 7:13 AM  
That was my question. I was at the county office and in the history of our HOA, there has never been any amendments filed with them. It is the original bylaws from 1975. So can they enforce this? Upon hearing of the change from 4-foot to 6-foot, I was informed that a homeowner wanted a 6-foot. That's about the extent of it.
MaryA1


Posts:0


04/23/2008 7:20 AM  
Denise,

I would suggest a thorough reading of all your gov. docs. Is there a provision which gives the board authority to make rules. This is common in many CCRs. Also, regarding the change in fence height. Does the rule say the fence can be no higher than 6' or does it say it must be 6' -- big difference. If the latter, I would certainly hope the board will grandfather those fences that are only 4'.
BruceF1
(Connecticut)

Posts:2480


04/23/2008 7:34 AM  
Perhaps the rule is intended to mean the MAXIMUM height of the fence (which makes more sense to me). In this case, changing the rule from a 4' fence to a 6' fence simply means that fences can now be 2' higher than before. Of course, older, 4' fences still comply since they are not over 6'.
DeniseC1
(Pennsylvania)

Posts:25


04/23/2008 7:49 AM  
I'll have to get back to you regarding the board making rules. As far as the fence, the rule is "must be 6-foot in height". Nothing higher, nothing, lower. The homeowners who already had 4-foot fences before the new rule, are grandfathered in. As a matter of fact, I'm quite confused about "grandfathering". Does that apply to the rules when you bought the house? Or does that apply to any changes in the rules since I purchased the house? i.e., when I moved here, I had no fense; the rule was a 4-foot fence. I would like to put up a new fence and the HOA says its has to be 6-foot. Which applies to me? Am I making any sense?

The homeowner who recently installed a fence, put up a 4-foot. Now the PM is asking me to report the homeowner to force them to tear it down thus, not allowing me to also install a 4-foot fence.
MaryA1


Posts:0


04/23/2008 7:58 AM  
Denise,

Grandfathering applies only to those fences already built when the new rule went into effect. Regarding the h/o who erected a 4' fence after the new rule: had they already received a copy of the new rule b/4 they built the fence? Is it the type of fence that would have to be completely torn down and rebuilt? Here in AZ we have block walls, so it would only mean adding a few more rows of block.
BradP
(Kansas)

Posts:2640


04/23/2008 7:59 AM  
Denise:

grandfathering would apply to those who already had fences, you would not qualify since you didn't have one. Typically boards are given lattitude to make rules for the association that are reasonable.

It is my opinion, and only an opinion, that changing the height requirement from 4 to 6 feet is not reasonable, given the fact that there are several 4 foot fences in your neighborhood.
DwightT
(Idaho)

Posts:664


04/23/2008 8:23 AM  
I don't know if this would apply for the OP, but some areas do not allow fences that border common area walkways to be over 4 feet. Somebody could easily hide behind a 6-foot fence and pose a threat to people walking on the path.
DeniseC1
(Pennsylvania)

Posts:25


04/23/2008 8:26 AM  
Well now I'm pretty clear about grandfathering, thanks. I will look into reading the bylaws regarding the board making new rules, which will require alot of reading.

The homeowner who erected the 4-foot fence did so after the 6-foot rule was implemented. I don't see how this was overlooked. I can't comprehend how a new fence would be installed without an architectural change form. The PM suggested they would be forced to take it down and I should provide her with the house #. I'm not up for a battle with the offending homeowner. Isn't the President responsible for reporting violations? .

MicheleD
(Kentucky)

Posts:4491


04/23/2008 8:38 AM  
Denise said: ". . .as opposed to living in Fort Knox ."

Heeey! I Resemble That Remark! I live about 20 minutes from Fort Knox!! LOL (joking with you -- I know what you are trying to say!)

Denise, as to your question about the president being the one responsible for reporting violations,as a matter of fact, generally, ALL homeowners are responsible for reporting violations. Some simply choose not to with the "live and let live" mentality, even though continual ignoring of the Deed Conditions, Covenants, and Restrictions could potentially erode them to the point of them being impotent.

Granted, if one is a board member, then reporting violations that are KNOWN to you, or SHOULD BE KNOWN to you, is one of a board member's fiduciary responsibilities to the governing documents.

I'd also like to make sure you are looking into the proper documents. Several times you have referred to looking at the "bylaws" of your HOA and nothing in the bylaws addresses fence height.

Just to be sure you are looking in the right place, in MOST HOAs, the documents that govern more specific issues of each lot and the homeowners' responsibilities are actually in the HOA's Deed Conditions, Covenants, and Restrictions, sometimes just referred to as "deed restrictions," sometimes as CC&Rs for short.

The "Bylaws" GENERALLY address how the HOA is governed, who governs it, how amendments are made, how elections are held, that sort of thing.

So you might want to make sure you are looking at the proper set of documents that govern the Dos and Don'ts of the Homeowners.

BrianB
(California)

Posts:2803


04/23/2008 8:54 AM  
Posted By DwightT on 04/23/2008 8:23 AM
I don't know if this would apply for the OP, but some areas do not allow fences that border common area walkways to be over 4 feet. Somebody could easily hide behind a 6-foot fence and pose a threat to people walking on the path.




Let's hope no miscreants learn how to crouch...
GlenL
(Ohio)

Posts:5156


04/23/2008 9:39 AM  
Denise the BOD probably has the right to change the rules concerning fences. If the CC&R's specify that the fences must be four feet high and made of wood then the BOD can't change that unless they amend the covenant or the law requires them to i.e. PA passes a law banning wood fences or requiring a height change. If all it says is fences are allowed but must be in the rear of the house then the BOD is within its rights to set the standard or amend the standard from time to time as long as they keep them in the rear of the home.

Have you formally applied to the BOD or ACC for a four foot fence and were turned down or are you just relying on what the PM said? Even if they turn you down you can apply for a variance. Also I would check you local zoning laws to see if there are any standards for fences in your area

When I went for my college orientation tour we were shown a women's dorm with a sturdy three foot high brick wall surrounding it. We were told that a wealthy former alum had left money in her will to build a new women's dorm with the stipulation that it be surrounded by a 10' brick wall or no money. They built it per her wishes only they built seven feet of the wall below ground level; maybe that would work for you.

"Common sense is like deodorant--the people who need it most never use it."
DeniseC1
(Pennsylvania)

Posts:25


04/23/2008 10:24 AM  
As many times as I reviewed the documentation (Amended Trust Deed dated 1992, which describes voting rights, and their power to contract for goods and services, borrow money, and invest, etc. I received when I purchased the home in 2005, and the documentation filed with the courthouse, there are no CC&Rs unless that is the handbook they distributed. There are no local ordinances in regard to fence height. I don't how to submit an architectural change form because I don't know what height fence is permitted. Do I just take the PM and the board's word and abide by their information that I'm required to erect a 6-foot fence?

Actually, the Amended Trust Deed states "no fence of any kind, wall, hedge or similar structure shall be placed, erected or maintained in the area between the front setback line and the street". That's the full and only description of fences. The streets (2) are situated at the front of every homeowner's property.

WOW! what a loop hole. That's hysterical. I can't wait to run that by my husband. I'm sure he'll be up for burying the extra 2' to make it a 4'.
MaryA1


Posts:0


04/23/2008 11:06 AM  
Denise,

CCRs means "covenants, conditions and restrictions". If your deed says there are restrictions on the property there must be a document outlining these restrictions. In most instances this document is called the CCRs. Perhaps yours is called something else, but you certainly should have one. If you do not, then you should ask the BOD for a copy. Its not something made up by the board, but rather a document prepared by the developer and recorded with the County recorder.

And, yes, you definitely should not build the fence without first getting approval from the architectural committee or the BOD. They may have a form to use or not; whatever the procedure, you should follow it. They will inform you of what height the fence must be.

TracyT
(Maryland)

Posts:228


04/23/2008 5:37 PM  
Hi Denise,

Your "Amended Trust Deed" sure sounds like the "Bylaws" (operating procedures) to me. Does this document reference CCRs, deed restrictions or Articles of Incorporation)? Is your HOA mandatory? If so, I agree with others that you should have a CCR/deed restriction document somewhere and that's the document you need to verify.

Also, did the assoc. vote to enact the rule change or was it just the board who did it? Does the "handbook" describe a procedure to change it? If not, changes should be defined in the "Bylaws". You could make a request to the board to put a rule change to a vote of the assoc. making allowance for fence height to be 4' or 6'.

Tracy
DeniseC1
(Pennsylvania)

Posts:25


04/24/2008 4:43 AM  
This is the outline of Amended Trust Deed

ARTICLE I - DEFINITIONS
Association
Charges
Lot
Member
Open Space
Owner
Person
Plan
Trust or Trust Document
Trustee
ARTICLE II - MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Membership
Voting Rights
ARTICLE III - PROPERTY RIGHTS IN THE OPEN SPACE
Member's Easements of Enjoyment
Extent of Member's Easements
ARTICLE IV - MANAGEMENT POWERS OF THE TRUSTEE
ARTICLE V - COVENENTS FOR ASSESSMENTS
Creation of the Lien and Personal Obligation of Assessments
Special Assessment for Capital Improvements
Special Assessments for Maintenance Restoration and Repair
Purpose of Assessments
Creation of Lien
Effective Non-Payment of Assessment
late Penalty
ARTICLE VI - USE OF THE PROPERTY
General Restrictions
Additional Rules and Regulations
Enforcement Rights
ARTICLE VII - PARTY WALLS
General Rule of Law
Sharing of Repair and Maintenance
Destruction by Fire or Casualty
Right to Contribution
ARTICLE VIII - ARCHITECTURAL CONTROL
ARTICLE IX - GENERAL PROVISIONS
Audit
Insurance
Restoration After Casualty
Duration and Amendment
Enforcement Provisions
Severability
Owner's Obligations

The is the Outline of the Amended Bylaws

ARTICLE I - GENERAL PROVISIONS
Name
Office
Seal
Trust Deed
ARTICLE II - DEFINITIONS
Association
Bylaws
Common Area
Dwelling Unit
Lot
Members
Owner
Properties
Trust Deed
ARTICLE III - MEETING OF MEMBERS
Annual Meetings
Special Meetings
Notice of Meetings
Quorum
Proxies
ARTICLE IV - BOARD OF DIRECTORS
Composition and Term
Nomination
Election
Resignation and Removal
Vacancies
Compensation
Meetings
Quorum
Action Taken Without a Meeting
ARTICLE V - POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Powers
Duties
ARTICLE VI - OFFICERS
Enumeration of Officers
Election of Officers
Term
Resignation and Removal
Vacancies
Multiple Offices
Duties
ARTICLE VII - FISCAL YEAR
ARTICLE VIII - BOOKS AND RECORDS
ARTICLE IX - ASSESSMENTS
ARTICLE X - INDEMNIFICATION OF MEMBERS, OFFICERS AND OTHER AUTHORIZED REPRESENTATIVES
Partial Payment
Presumption
Definitions
ARTICLE XI - AMENDMENTS

Regarding the Fence, I received a document after the handbook was distributed (which required 4' fences) "Addendums to "________ Acres Homeowners Association Amended Trust Deed" (this was never filed with the courthouse) Fences shall be no higher than 6 feet and made of wood or white vinyl.

I discovered at the board meeting last night, the fence height was changed because a board member requested it. To answer your questions, the board voted to enact it; according to them, homeowners don't having voting priviledges except to vote in board members. The handbook does not describe a procedure to change it. The handbook does state, These Rules and Regulations do not supersede or amend any provisions of the Amended Trust Deed or Bylaws of the Association (the "Documents"), but are to augment, detail and interpret them.

Thanks for all your help!
TracyT
(Maryland)

Posts:228


04/24/2008 5:41 AM  
Denise,

Thanks for this clarifying information. It's very helpful.

1. "Addendums to "________ Acres Homeowners Association Amended Trust Deed" Shame on your board for not filing. But the answer to your question is here "Fences shall be NO HIGHER than 6 feet and made of wood or white vinyl." There is nothing wrong with this wording for your handbook.

2. "according to them, homeowners don't having voting priviledges except to vote in board members." I'm sorry but it appears they've made another mistake. Review your Bylaws Section:

ARTICLE III - MEETING OF MEMBERS
Annual Meetings
Special Meetings
Notice of Meetings
Quorum
Proxies

You can pursue a "Special Meeting" for the purpose of changing (correcting) the handbook rule to align with the Amended Deed. Be prepared to follow the procedure it to the letter, do the foot work and knock on doors to ensure that you get the votes needed. If the BOD still doesn't respond then prepare to repeat the procedure to vote them out!

Good luck.
Tracy
DeniseC1
(Pennsylvania)

Posts:25


04/24/2008 5:58 AM  
Tracy,

As I stated before, the handbook (adopted 08.22.07) states 4' fences. Recently, we received Addendum from 4' to 6'. Since all of their new rules are not filed, can they still enforce this rule and any and all rules that do not follow the bylaws that were filed?

About the "special meeting" it states members may be called by the Board of Directors, or upon written request of not less than 25% of the members of the Assocation. So I should perhaps get a petition of 25% or more of the homeowners requesting the fence height be changed back to 4' foot?

Also, I just saw this "Notice of Meetings". Written notice of each meeting of the members shall be given by the Secretary by first class mail, postage prepaid, not less than 30 days or more than 60 days in advance of the meeting, setting forth the purpose of said meeting. The board is not following this practice. Notice of meetings are posted on a bulletin board at our mailboxes with no mention of the purpose of said meeting.

Thanks Again!
MicheleD
(Kentucky)

Posts:4491


04/24/2008 6:08 AM  
Denise:

A 4-foot fence appears to be a perfectly acceptable and allowable fence height according to their own document:

" "Addendums to "________ Acres Homeowners Association Amended Trust Deed" (this was never filed with the courthouse) Fences shall be no higher than 6 feet and made of wood or white vinyl. "


-- "No higher than" means it can be any height UP TO but NOT TO EXCEED 6 feet in height.

A 4-foot fence by definition is "no higher than 6 feet."

So I can actually install a 5-foot fence if I so desire.

Enjoy your 4-foot fence!
MaryA1


Posts:0


04/24/2008 6:20 AM  
Denise,

The amended deed of trust sure sounds like what many of us refer to as the CCRs. This is where you go for architectural control and other restrictions. I noticed a secion titled "additional rules and regulations"; this is most likely the provision that gives the board the authority to adopt additional rules (other than those contained in the amended deed of trust). Check this out to see whether or not a vote of the members is required; most often NOT. And, as Michele pointed out, the rule for fences says "not higher than" 6' which means it can be any height as long as it isn't higher than 6'. If the board is penalizing anyone who doesn't have a 6' fence then they are short on reading comprehension! Send in your request for a 4' fence; you should encounter no problems. But, if you do, then just show them the rule and ask what "no higher than" means! Just make sure you go through the proper proedure before building the fence. I'm curious to know what type fences are being built.
BradP
(Kansas)

Posts:2640


04/24/2008 7:30 AM  
Denise:

If changes to deed restrictions are not filed with the county or responsible municipality then I believe they don't exist. However as a couple of other people have pointed out you can build yourself a 1 foot, 2 foot, 3 foot, 4 foot or 5 foot fence, just not a 6 foot, 1 inch fence. If their intention was to only allow 6 foot fences they failed because it is worded wrong.
TracyT
(Maryland)

Posts:228


04/24/2008 7:48 AM  
Denise,

The only rule they have to “file” is the amendment change to the deed restriction. As others have pointed out your deed restrictions allow the board to make additional rules . . . but it appears that a 4’ fence is allowed and the deed restriction/amendments (after filed) trump all “rules”.

So it’s a matter of how to convince your board of that. If you can talk to them great, if not we have to explore the other options. But first can you please share with us what, if anything, the original deed restriction says about fences? Thanks.
MaryA1


Posts:0


04/24/2008 1:10 PM  
Denise,

Can you tell us if the Amended Deed Trust addressed fences? If so, exactly what does it say? You have stated what the addendum said about fences, but if it wasn't recorded then it isn't official. At this point in time, it appears the Amended Deed Trust is the official document. If fences are addressed then the board must adhere to what is written there. The BOD may have the power to make a rule to interpret something in the Deed Trust but they cannot change the meaning of it. If it says "up to 4'" or "up to 6'" they cannot make a rule saying "6'". However, if fences are not addressed the, perhaps, BOD can a rule. Check the article in the Deed Trust entitled "rules and regulations" to see if members must vote on board proposed rules. In most instances the board can make rules w/o member input or vote. I doubt the board can amend the Amended Deed Trust. Check out the Article XI - Amendments.

Regarding meetings. . . You may be confusing board meetings with members' meetings. In most instances a meeting of the members must be noticed by a written communication mailed to all members of the assn. However, board meeting notices are not required to be mailed to the members and I've never heard of it being required to be mailed to the board members.
DanaA
(Florida)

Posts:117


04/24/2008 5:06 PM  
Denise, Glenn has a great point. If this fence height change is now only in your new "rules", then it really can't be enforced. A Rule and Regulation can not "change" the recorded documents, only clarify them. The Heirarchy of documents remains clear, regardless of what state you live in. And Rules are at the bottom of the heirarchy.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > 4-Foot Vs. 6-Foot Fence



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.)

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement