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Subject: Can our HOA do this? fence issue. help please
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JoeO1
(Michigan)

Posts:7


11/17/2010 7:48 AM  
Our bylaws allow fences. the exact wording is below:

Artical VI, Section 18. Fences. No fence or wall of any kind shall be erected or maintained on any Unit without the express written consent of the Board of Directors, which shall have the sole and absolute discretion to determine the suitability of any such fence or wall. No fence, wall or hedge shall be located nearer to the front lot line than is permitted by the Zoning Ordinance of the Township. No fence, wall or hedge shall be maintained or erected which blocks or hinders vision at street intersections, including any fence, wall or hedge that would obstruct or limit vision across a 'clear vision easement' established adjacent to any road within the Condominium. No full yard or chain-link fencing shall be permitted.


Our subdivision is made up of single family homes and our HOA has been in existence for over 6 years now. The subject of fences has always been a touchy subject with the Board. We have tried to clarify the bylaws and adjust them to only allow a couple types of fences but we can never get the required participation or votes to change the bylaws.

This past month, a homeowner submitted a modification plan to add a pool and 4 foot high black aluminum fence surrounding his backyard. This is the first such request we have had for someone looking to add a fence. The fact is that many board members do not want fences at all even though they are allowed by our bylaws. I have only been on the board for a short time and don't mind fences as long as they are follow our guidelines above, as this request does. From what I am gathering from the other board members, they want to deny any modification plans that include a fence because a fence cannot be put up without their express written consent. I am not comfortable with denying plans that are within our bylaws. The homeowner is adamant about this type of fence and using it around his entire yard, not just the pool. The rest of the board only wants to allow the fence around the pool, not the entire backyard.

What are our options in regards to fences within our community? Can we just deny any request for one even if it is within the bylaws? what would happen if the homeowner took civil action to put the fence around his yard without HOA approval since he is technically within our bylaws?

Also, the homeowner has said that the purpose of the fence is not only for his pool but also to make sure his dog (and kids) stays in his backyard and also keeps other animals (and people) out. Do we have as an HOA have any liability if we deny his fence and then his dog runs through his invisible fence and bites another person or animal?

I am in a position where I am in disagreement with most of the board and, since I have only been on it a short period, do not know exactly what we can and can't do. I don't want to press it if the other board members are within their rights but will if they are overstepping their bounds, so to speak.

Thanks in advance for any advice.
MaryA1
(Arizona)

Posts:388


11/17/2010 8:04 AM  
Joe,

Your bylaws are explicit in saying the board "shall have the sole and absolute discretion to determine the suitability of any such fence" -- period. Also the bylaws state "no full yard fencing shall be permitted". IMO, it is well within the boards powers to deny the fence; however,they should be careful about denying a fence that is requested for security purposes. There have been cases where an HOA was found at fault for denying a security measure and the home's security was breached.
SureshD


Posts:0


11/17/2010 8:07 AM  
Based ONLY on what you have posted...

..the BOD has NO authority to deny a fence BUT rather is compelled to now define what is "suitable" for the community as your document specifies.

Trying to "extend the specification" of a suitable fence to the point of denial will likely not be sustained legally.



JoeO1
(Michigan)

Posts:7


11/17/2010 8:16 AM  
to clarify, full yard fencing is meant to mean full yard (front and back), not just the back yard. at least that is how I interpret it and the other board members seem to think the same.


also, the suitability phrase threw me for a loop too. is the consent given for suitability of the fence? or just the fence alone? the homeowner has brought this up as well, that the HOA is only to determine the suitability and not whether or not the fence itself is allowed.

interesting that the first 2 responses come in on opposite sides.

thanks guys. keep 'em coming. we are supposed to meet on this next week and it will come to a head at that point.
DonnaS
(Tennessee)

Posts:5671


11/17/2010 8:39 AM  

Joe,

Whoever wrote your covenants must have written mine as well because they are almost word for word the same.

There needs to be some clearer guidelines for this covenant . Currently the BOD is interpreting them as they probably are allowed to do. Types of materials should always be included in the guidelines or cc&r's and certainly a definition as to what the full yard fencing is considered. Every HOA that I have been allowed in does approve full REAR yard fencing. That should be what is considered "full yard". Setbacks from the street is also a nescessity for instructions on installations.

His request for the fene material is very compatable in response to HOAs who do not want fencing because this type of fence does not block views of the neighbors and it never gets moldy and discolored and just gets nasty like untreated wood fences do.

He WILL be allowed to fence in the pool area by County code so the fence will be there with or without the Board approval so IMHO, the back yard being fenced in should not be denied as long as this fence does not go beyond the rear of the structure.
SusanW1
(Michigan)

Posts:5202


11/17/2010 9:09 AM  
Michigan law says a 4 ft. fence must be around all inground pools, so your board needs to be sensitive to this requirement.

But "around" the pool would not be along the homeowner's property line.

BrianB
(California)

Posts:2820


11/17/2010 9:23 AM  
i was going to say what Susan did.. Sounds like the board has a lot of authority here, and COULD create an absolute ban on fencing through red tape, if they wanted. However, they can't ban something that is required by city or state law, so if the state says a fence must be erected (and pools are typically places that states do that), the HOA will have to come up with some kind of approval in order to let the owner meet the state law (if the pool is inground, if the law applies, etc.).
JoeO1
(Michigan)

Posts:7


11/17/2010 11:40 AM  
to clarify further, we as a Board do not have a problem with a fence around the pool. what we want to avoid is people fencing in their back yards. unfortunately this is allowed by our bylaws and we can't change them on our own.

so is denying all fenced yard modifications the answer? or are we opening ourselves up to a lawsuit from a homeowner that the bylaws were effectively changed without proper voting procedures? it seems to me that to go from fenced yards being allowed to not being allowed is materially altering the bylaws but that is why I am here. Although we could argue that we do allow fenced yards. we just don't approve them and approval is required. will that fly in a court of law?
SusanW1
(Michigan)

Posts:5202


11/17/2010 12:25 PM  
Your documents state that the board can allow fences.

Your board needs to discuss whether or not it want to start a dominoe effect. Because that's what will happen.

The homeowner has put the reasons in front of the board for consideration. He makes his case by using today's "hot topic" reasons, i. e. pool privacy, safeguarding his dog and his family against other dogs, and the big one: liability.

The board will have to decide if these reasons warrant a fence around the entire yard.

But plan ahead. There will be others who will want permission next.
DonnaS
(Tennessee)

Posts:5671


11/17/2010 12:47 PM  

Joe,

No matter where the Hoa is, fencing always will be an issue of some liking them and others not liking them. The Board needs to make a decision that is #1, right for the homeowner. This fence does not affect the entire developement because it is in his yard, not 20 blocks away's yard.

#2, The entire HOA may want feces or maybe many others or maybe just a few so set standards that make the fences all of materials that are pleasing to the eye and of quality material and consistant in how they are installed.

The metal fencing that he is requesting is great materials and can be almost invisable if some plantings are required to be around them. Make this something that will keep the value of the area consistant because of the right materials and design being required.

My HOA required the metal powder coated fences to be 4 feet high, black or white in color AND bushes or shrubs to be planted 18 inch on center along the outside of the fence. In a few months, no one knew that there were fences because of the vegetation growing in front of them.

Security and privacy are a big part of this request from the H.O. Put yourself in his place with a new pool being in view of all of the neighbors. It just does not seem right that the Board should have so much control as to make their own feelings against fences be burdeoned upon the H.O.

As a Board member myself, I always follow documents but those documents become a noose around our necks if we shut down to the needs of our members. APPROVE HIS FENCE REQUEST.
MaryA1
(Arizona)

Posts:388


11/17/2010 2:21 PM  
Joe,

Regardless of whether or not you think the bylaws allow fences, those same bylaws also give the board the authority to determine whether a fence is suitable and the board must approve any erection of a fence.
JoeO1
(Michigan)

Posts:7


11/17/2010 6:43 PM  
Posted By DonnaS on 11/17/2010 12:47 PM

Joe,

No matter where the Hoa is, fencing always will be an issue of some liking them and others not liking them. The Board needs to make a decision that is #1, right for the homeowner. This fence does not affect the entire developement because it is in his yard, not 20 blocks away's yard.

#2, The entire HOA may want feces or maybe many others or maybe just a few so set standards that make the fences all of materials that are pleasing to the eye and of quality material and consistant in how they are installed.

The metal fencing that he is requesting is great materials and can be almost invisable if some plantings are required to be around them. Make this something that will keep the value of the area consistant because of the right materials and design being required.

My HOA required the metal powder coated fences to be 4 feet high, black or white in color AND bushes or shrubs to be planted 18 inch on center along the outside of the fence. In a few months, no one knew that there were fences because of the vegetation growing in front of them.

Security and privacy are a big part of this request from the H.O. Put yourself in his place with a new pool being in view of all of the neighbors. It just does not seem right that the Board should have so much control as to make their own feelings against fences be burdeoned upon the H.O.

As a Board member myself, I always follow documents but those documents become a noose around our necks if we shut down to the needs of our members. APPROVE HIS FENCE REQUEST.




I agree with you but I am one guy on the board, although another could side with the HO too. but there are a few people on this board that have made it their life's mission to make getting a fence incredibly difficult. like I said, this will be the first fence. I want to be able to tell these people that the CCRs seem to allow what the HO wants, and it would look nice, so what is the problem really? the HO wants to fence in his yard. even if you don't agree with it, the CCRs allow it, so in my mind this should be an easy call.

I'll update the thread as we move along but the feeling I'm getting in talking to board members is that they want to amend the bylaws by issuing guidelines that would limit the kind of fence and where it can go. I think something like this would have to go to a vote of the HOA Members and that is the clarification I guess I am looking for.

How much can you change bylaws without going to a vote of homeowners (we require 2/3s vote to change bylaws)? how much is a guideline to a bylaw allowed to limit the bylaw such as the one in the OP? It already states what isn't allowed, the assumption being that everything else is. Is this a bad assumption and the BOD can give just one type of fence and say 'this is all that is allowed'?

thanks for the responses so far
DonnaS
(Tennessee)

Posts:5671


11/18/2010 5:16 AM  

Joe,

You asked--"How much can you change bylaws without going to a vote of homeowners (we require 2/3s vote to change bylaws)? how much is a guideline to a bylaw allowed to limit the bylaw such as the one in the OP? It already states what isn't allowed, the assumption being that everything else is. Is this a bad assumption and the BOD can give just one type of fence and say 'this is all that is allowed'?

thanks for the responses so far

The answer is simple. You cannot change one word of a by-law without a vote by the membership. Normally guidelines are something that can be added and voted on by the Board of Directors. They can be written by the Board or a committee and adopted without a membership vote. They should be attached to either ARC , or by-laws pertaining to architectural or landscape rules.
JoeO1
(Michigan)

Posts:7


11/18/2010 4:31 PM  
thanks, Donna.

I happened to talk to the HO today and he pointed to the Architectural Contols section of our bylaws that states:

The Developer shall have 30 days after receipt of all required plans and specifications to issue a written approval or denial. If the Developer fails to issue a written approval or denial of the plans and specification within the 30-day period, then written approval will not be required and the plans and specifications shall be deemed to comply with this section.


the HOA has had this request for almost 50 days now with no response to the homeowner. are his plans therefore automatically approved?

I'm confused because the Developer is no longer involved, with the HOA now in its place. is this section no longer valid?

anyone have any experience with the Architectural Controls sections and when it applies?
DonnaS
(Tennessee)

Posts:5671


11/18/2010 6:42 PM  

I am sure that others will voice their opinion on interpreting this above statement. The 30 day limitation which is designated to the Developer will automatically transfer to the HOA after the official turnover from the Developer to the membership (HOA) In other words, your H.O is correct. He has put in his time waiting and failure by the BOD to approve or deny his application should allow him an automatic approval. This is how we interpreted this in my HOA.
MaryA1
(Arizona)

Posts:388


11/19/2010 5:48 AM  
Donna,

I would agree with your interpretation if it did not expressly state "developer". I believe most CCRs state if not approved by the Architectural Committee. IMO this article should be amended to state architectural committee otherwise it will not apply after the developer transitions to the members. Bottom line, the CCRs cannot say one thing but mean another!
DonnaS
(Tennessee)

Posts:5671


11/19/2010 9:55 AM  

Mary,

Because this wording is in the ARC section of the CC&Rs, references to the Developer are also included in that section of the CC&Rs dealing with architectural control. Our attorney once said that any references to the developer will be changed in the paragraph, which is usually very obscure (after transition from the Developer) to mean now, "The Association" Therefore, I read the Developer wording to now mean the Association.

And as most associations never redo their documents, removing the word "Developer", it still rears it's ugly head now and then.
MaryA1
(Arizona)

Posts:388


11/19/2010 10:06 AM  
Donna,

Sorry, but I cannot agree with your attorney's opinion. If it is specefically stated that it only applies while the assn is under declarant control, then that's what it means. If it's meant to also apply after declarant control then the statement wouldn't be needed at all, right? Oftentimes there are certain things written into the CCRs that only applys to the developer and is not meant to ever apply to the board once the developer is gone.
JoeO1
(Michigan)

Posts:7


01/18/2011 12:56 PM  
Hi all, our Annual Meeting is tomorrow and I've been meaning to update this with an issue that has come up relating to this.

Our HOA Board decided to not make any decisions on this matter until we received all applicable permits from the homeowner relating to this project. He argued that this made no sense for him to spend money and have to sign contracts to get the permits if the HOA hadn't approved it yet. However, we stuck with the ruling and sent him a letter stating we needed to see the permits before making any decision. So the homeowner signed contracts and paid for permits. He gave us the fence permit and a letter from the County that said the pool permit was ready and everything was ok with it. However, some members of the board used this as an excuse to further delat the decision. Now I come to find out that our bylaws specifically say that no application for permit should be filed with the County until HOA approval for the project is received. We told this homeowner and now he is ready to raise a ruckus at the meeting. He is now on the hook for a lot of money and has already paid out a few thousand dollars for deposits and permits.

my question is: what kind of liability do we as an HOA have that we have told a member something that contradicts the bylaws. honestly, the permit issue was only raised to delay approving the fence. I am quite embarrassed by the way we as a board have handled this and just want to approve what the guy wants. Will he have an argument that the HOA went outside of the bylaws to require a permit from him? the permit issue meant that he had to sign a contract with a pool contractor who could then file for permits. He says it is too late to deny or alter his request now. I tend to agree but some board members may still resist.

Any opinions would be appreciated.

Thanks
FelixR


Posts:0


01/18/2011 1:08 PM  
Local, county, state and federal law take precedence over HOA rules and in this case a fence is most likely a legal requirement under one of those jurisdictions. Your HOA can't disapprove the construction of a fence but will have a say as to what it looks like.
TimB4
(Virginia)

Posts:17766


01/18/2011 4:19 PM  
Joe,

The Board would have problems if this homeowner wanted to take the Association to court over the issue. If the member doesn't want to go to court over this issue then the board is just guilty of not following it's own bylaws and probably doesn't have any other liability other then perhaps losing seats at the next election and then having the project approved (in accordance to the governing documents) by a new BOD.

Per your postings the board did the following:

1. Received a request and failed to respond in 30 days.

Per your posting, this makes it an automatic approval.

2. Board responded but required permits, etc. in clear violation of your guidelines.

Since there is public knowledge, (this forum, board minutes, etc.) that the board was aware of these guidelines and chose to make the owner jump through hoops then at the very least, the owner suffered damages and could take legal action to recover those damages.


legal action may or may not allow the fence. Legal action has, in my layman's opinion, a good chance of winning the cost of permits, court costs, etc. that the homeowner was required to do by the board.


I would strongly suggest that the facts be presented to your Associations attorney for a legal opinion - asking a question of, what did the board do properly and what was done improperly NOT the question of how can we stop this fence.

Tim
BarbaraB10
(California)

Posts:117


01/18/2011 4:50 PM  
JoeO,

Sounds to me as though the 'proposed' 4 ft alum. fence meets the open vision requirement and most likely fulfills the city's safety requirement for fencing around the pool.

Why won't the board grant permission? You would think that the objective is to approve the fence within the written guidelines, not tout authority or make demands that are not in the bylaws.

The board's request for (city?) "permits" generated a financial and contractural obligation on the homeowner and may have given him a presumed or implied 'permission to proceed'. No where in your bylaw excerpt does it state that permits must be submitted for BOD review. It seems as though a preliminary drawing would have been more appropriate.

I do hope that the other board members will work with you to achieve a pleasant outcome for the association and the homeowner. Good luck.




KellyM3
(North Carolina)

Posts:1784


01/18/2011 5:54 PM  
The law trumps HOA covenants. Period.
TimB4
(Virginia)

Posts:17766


01/18/2011 7:53 PM  
Posted By KellyM3 on 01/18/2011 5:54 PM
The law trumps HOA covenants. Period.




Kelly,

The law trumps HOA covenants unless the law defers to those covenants or other governing documents or fails to fully specify everything around it. Best example would be the right to display and fly the American Flag - authorized by the Law - However, the law never said an individual had a right to display the flag on a 20 foot free standing pole vs. a 6 foot pole attached to the side of the home.

For discussion on this specific topic, State laws typically require a fence around pools. However, the Association could deny fences - thereby also denying any pools. If the Association approves the pool, then I would agree that the Association also effectively approved the fence that State law requires to go around the pool. However, the HOA might still have some say in the color or type (wood, aluminum, cast iron, etc.) of fence that is installed around the pool.

The original poster never stated if the pool was approved.


Tim
JoeO1
(Michigan)

Posts:7


01/19/2011 8:07 AM  
thanks for the replies so far.

to clarify, the Board doesn't have a problem with the pool or the fence around the pool. some members of the board have a problem with the fence around the yard, others on the board do not, myself included. To delay having to make a decision and to give the board some time to think about issuing guidelines on fences, the Board decided to tell the homeowner that they would not even consider approving the entire modification without seeing the permits. This would take a month or two for the HO to provide but in order to provide this he would have to sign a contract with the pool contractor as the HO could not obtain a pool permit without the contractors help. The HO complained that it made no sense for him to pay out of pocket if the Board could then deny his request. The Board stuck with its decision to require permits. This is a direct contradiction of what is in our bylaws. The HO has now paid his contractor a deposit and has paid a couple hundred dollars for the various permits. He provided the fence permit and the letter from the county regarding the pool permit in time for our last meeting but once again we did not make a deicion on the matter. This upset the homeowner, rightfully so.

So now the homeowner is not only aware of the 30 day time limit which may mean his request is automatically approved, but he is also now aware of the bylaws and how they are the exact opposite of what we told him. He is going to argue that since we required the permits (outside of our bylaws), we also required him to sign a contract committing him to the project, and that it is too late to not approve his request. Its alot of money and if the request isn't approved as is, its going to cost him an extra $5,000 for a different fence (one the board will approve) which would put him way over budget he set for this project. Also, we could rule that he can only fence in his pool and not the yard and he is saying that he never would've proceeded with the project if he knew this was going to be the outcome. No matter what we decide, the HO has told me that he is going forward with the project as he submitted it and if the HOA wants to deny it and then fine him, that he is not paying any fine. If the HOA wants to take him to court, he seems to think he has a pretty good argument with 1. the 30-day limit and 2. the fact that the Board required him to provide permits which violates our bylaws and also caused him to sign contracts in an effort to get the permits.

My basic question was: do you think the homeowner would win in a court case if it went that route? Does he have a valid argument?

I'll say again that I am in complete agreement with the homeowner and don't like the way we as a Board have handled this. Hopefully, it will all get resolved tonight and everyone will be happy but I know that the HO is not going to be happy with anything other than an approval of his project as it is and that may upset a couple board members.

thanks again
JanetB2
(Colorado)

Posts:4211


01/19/2011 10:57 AM  
I’m not an attorney; however, from everything you have described my personal opinion is the homeowner would be more likely to win than the HOA. I agree with Suresh as she posted above that, the Board has NO authority to deny a fence that meets all the setback requirements in your documents. They can only define what is considered a “suitable fence” for the community.

The homeowner is currently out of pocket due to the board making him jump through hoops, board has not responded within time frames, and board cannot deny a fence. Therefore, does your board want to involve everyone within your HOA in expensive litigation over something dumb … or do they just want to define a suitable fence for the community and everyone continue on enjoying life.
TimB4
(Virginia)

Posts:17766


01/19/2011 5:56 PM  
Posted By JoeO1 on 01/19/2011 8:07 AM

My basic question was: do you think the homeowner would win in a court case if it went that route? Does he have a valid argument?




Going to court is always a 50/50 issue. You may or may not win even if the evidence is on your side. I am not an attorney and I do not work in the legal profession. Since you asked, I will offer my layman's opinion:

1. 30 day notice would indicate a very good argument. However, because the homeowner agreed to get the permits, it could be argued that he conceded his right to exercise the 30 day response from the initial notice.

Now, if 30 days go by with no response from the board from the time he submitted the additional information (permits, etc.), then a very good argument, backed up by you own governing documents, could be made for automatic approval. If this time limit passed and I were on the jury I would vote in favor of the homeowner. If the board responds with a disapproval prior to the 30 days passing from the submission of permits, etc. then I would vote in favor of the board.


2. As I pointed out earlier, because the Board required permits, etc. to consider a request, in violation of your own governing documents a very good argument could be made to recover the cost of those permits, etc. However, the Board could also argue that it was a request and not a requirement and the Homeowner, on his own chose to honor that request so the Board is not responsible for the additional expense. If I were on the jury, I would have to see the actual communications to see if it was a request or a demand/requirement from the board for the permits. It would hinge on the details and the verbiage used in those communications or what is testified to in court. 50/50 chance of winning or losing.


I would offer the following advise:

To the Homeowner - You agreed to provide the permits so now you must wait at least 30 days for any response. If the Board responds within the 30 days and says no and offers no supportive reason why (citing sections of the governing documents, State law, etc.)then you should pressure them to cite the article you would be violating. If the Board can not provide any you might have a case in court but would need to consult with an attorney.

To the Board - You have played enough games and are fortunate that the homeowner didn't call you on it from the beginning. Had they chosen not to comply with the request/demand for permits your own governing documents would have sided with the homeowner and an automatic approval would have been done. However, the homeowner did comply with the request/demand. Now the clock has been reset and the Board better make a decision. Since you have already cost the homeowner money for the permits, if you are planning to deny his request, I would strongly encourage you to seek legal advise on how to properly word the denial in order to protect the Association and the individual board members. Since the Board members knowingly failed to follow the rules and guidelines of the Association it is possible that the D&O insurance would not cover the individual board members if the homeowner chose to seek reimbursement for the permits from the board members directly.

Tim
DeeS1
(Michigan)

Posts:223


01/20/2011 5:51 AM  
We are also struggling to come up with some pool-fence guidelines right now. Our documents do not allow fences unless they are to surround an in-ground pool, which our community allows. We too would like the avoid the fencing of entire backyards and are thinking about putting in a restriction that the fence must be located within XX feet from either the pool hardscape or pool edge, whichever is greater, surrounding the perimeter of the pool.

This way, a homeowner who wants to dedicate his entire backyard to pool functions, may do so and essentially fence in that are, but prevents someone from installing a small pool and enclosing the whole backyard with a fence.
TimB4
(Virginia)

Posts:17766


01/20/2011 6:23 AM  
Dee,

Before making that policy, your Board should check the State laws that might have already addressed the issue as to how far away or how close the fence must be.

Tim
AndreaK1
(California)

Posts:1


08/15/2012 6:45 PM  
Any word on the final result?
WendyT4
(Nevada)

Posts:1


05/07/2018 1:35 PM  
Im buying a house on Eagle Village St in Sun City MacDonald Ranch in Henderson. It does not have a fence currently but I would need to put one up to keep my dogs from wondering when they do go outside. I dont want to buy if I cannot put a fence up and I was told its easy to do with the paperwork, board approval and contracted fencers using approved material.
Is this true? What is the process I need to do to find out an answer ? The sale is contingent on the fence.
TimB4
(Virginia)

Posts:17766


05/07/2018 3:13 PM  
Wendy,

Welcome to the forum. Please review the posting rules, as there are no mentioning of names.
You need to read the governing documents to see if fences are allowed. If they are, you would then submit a request to the Association for the change. DO NOT put up a fence without Association approval.

If you do not have access to the governing documents, an easy way is to look at the houses in your block. If some of them have fences, it's highly possible that you can have a fence.

I would also suggest stopping by the Associations office on site and ask questions there. Explain that your a potential buyer and want to verify a few things. They should be willing to answer some basic questions for you (providing the office isn't real busy).

In the future, it would be best to start a new topic vs. reactivating an old thread.
You start new topics by clicking on the words new topic.

Hope this helps,

Tim
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Forums > Homeowner Association > HOA Discussions > Can our HOA do this? fence issue. help please



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