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Subject: Fences
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Author Messages
DawnB
(West Virginia)

Posts:12


02/01/2006 10:51 AM  
After reading my C & R's I am under the understanding that our HOA cannot build fences over 4 ft and cannot be built unless approved.
I have a white 7 ft fence going in across the street from me. If this is not approved what can be done about this? Also, if it was approved how can the HOA approve such a fence if it is in the C & R's?

Section 13- Fences.
No lot shall be fenced in any manner except as follows:

A fence may be installed to enclose a swimming pool provided the maximum height of the fence is six (6) feet or the minimum height required by any State of West Virginia or Berkeley County, law, ordinance, statute, rule or regulation mandating the fencing of private swimming pools.
Any fences existing as perimeter boundary line fences for the outer perimeter of the land purchased by the developer and developed into the Subdivision may be permitted to remain standing and in existence, but all interior fences not part of the outer perimeter fencing of said real estate shall not be permitted to remain standing, in existence, or replaced, subject to the exceptions see forth in items (c) and (d) of this section.
The Developer, and its agents and assigns, may construct and install fencing along all or any pare of the common areas, including but not limited to along streets, roads, highways, lakes, ponds, or any other bodies of water.
Exception to the prohibition against installing and maintaining fences on any lot may be made the Developer or by the Association, acting by and through the Architect,ural Review Committee in the same manner as provided by Article VIII, Section 4 of this Declaration of Covenants and Restrictions. Any such exception, including but not limited to approvals as to height, design, materials used to construct, color and location of the proposed fence must be made in writing if approved by the Developer, Association, Architectural Review Committee, or their successors or assigns.
RogerB
(Colorado)

Posts:5067


02/01/2006 1:35 PM  
DawnB, contact your Architectural Committee and ask them to explain why they approved it. If they didn't approve it then request they take action to have it removed. If they did approve it then you could complain to the Board and ask them to take appropriate action.

RogerB
Joseph
(Colorado)

Posts:3


02/01/2006 2:44 PM  
Dawn;
In addition to what Roger had mention, you need to check your HOA records to see if the ARC had documented the approval and also ask the homeowner if they have received a written response of approval as well.
It may have been where the ARC will approved something verbally and later had all the intentions of following it up with a written response but that response ends up falling thru those mysterious cracks and in the end, neither side has the documentation supporting the decision.
If it were to go to court, It is my option that I do not think that the Judge would favor the Board since they are the ones with the responsibility of up holding the CC&R’s and the burden of proof is on the Board.
JimR
(Colorado)

Posts:21


02/01/2006 3:13 PM  
The first thing that you need to find out is if the new fence was submitted to the ARC. If it was then you can request to see a copy of the approval, and request a reason from the ARC and the Board as to why they made an exception.

The ARC can not approve anything, they are only a committee that can make recommendations to the Board. The Board is the Approving entity. The Board has the power to make an on most any matter.

One thing that you do not want to do is to let this new fence stand there for more than a year and then try to have it removed. There is such a thing as a "grandfather clause" in most CC&R's that allows an item to stay if not requested to be removed after a year. The one item that determines weither it can stay or not is does it add value to the property? If the fence homeowner can prove that it adds value, then he can claim grandfathering.

I had this thrown up to me several times last year, becuase I was the first President to enforce covenants in our 5 year history. People with illegal dog runs even claim the grandfather clause. Now I do not believe that a portable dog run made of chainlink panels that will probably move when they sell, is a valid example of the use of the grandfather clause. Now a patio that has been built illegally, over a year old, would qualify. We have a fence height restriction of 4 foot in the side lot line area. Now most people think that the side lot line of a lot is from the side of your home to your lot line. That is not true. Side lot lines run from the street to your back lot line in a line along your house lines. Found that out the hard way.
LisaS
(Illinois)

Posts:341


02/02/2006 6:58 PM  
In our Association , the ARC and the Board are one and the same. We have discretion in approving fences hugher than our specified maximum (5 feet) if we so choose.

First, ask your HOA if/when/why this fence was approved. Do it now- homeowners are much more likely to fight to keep the fence once it is completely installed than if they are forced to stop mid-installation.

Even if it does go up- if it was not approved your HOA can force the owner to bring it into compliance or remove it.

Good luck,
Lisa
AudreyB
(Florida)

Posts:104


02/03/2006 9:49 PM  
Hi Dawn,

If the neighbor's across from you has been approved for their 7 foot fence. Then, yes there is nothing you can do.

Because it says in the last sentence of your C&R, ". . . Any such exception, including but not limited to approvals as to height, design, materials used to construct, color and location of the proposed fence must be made in writing if approved by the Developer, Association, Architectural Review Committee, or their successors or assigns."

". . .location of the propose fence must be made in writing if approved. . . Assocaition, Architectural Review Committee."

Also, besides the ARC approval, does your city/town/county have an ordiance that says NO to 7 foot fences? There's your out. Then, does your neighbor's need a permit for their 7 foot fence from your city/town/county? There's your other out, if they did not purchase a permit for their fence.
Ordiance and permit are your outs if they are against the homeowner. Otherwise, if your neighbors have all their "slats" in a row for their 7 foot fence before they built this fence, then your sunk.

Where we live, the Association may say "yes", but the city has the final approval. So, find out if there is in deed an ordiance against the 7 foot fence, and if they need a permit to put a 7 foot fence up, did they purchase one?

So, if everything was done legal by this homeowner, they opened the doors for other homeowner's to follow suit. Then, there is nothing you can do about it. If it's an eye sore and you feel the property value will go down with this fence, then I say sell you home now. Pretty soon your subdivision is going to look awful with 7 foot white fences.
I can't stand 6 foot white fences.

We just finished putting up our 6 foot board on board fence, built with presure treated wood ourselves. Since we live on a corner lot, we were allowed to make a berm (built up ground) first then put the 6 ft fence on top of it, so it looks 7 feet high. This is so our very tall nosey neighbor's cannot look over our fence, as they did with our old 6 foot fence.

We are stunned that we have gotten so many compliments on our fence. One very married male neighbor said, "If a fence can be pretty your fence is the prettiest in our subdivison."

Our Association does not allow those white fences. Only wooden fences. The city, last year, changed the ordiance for 4ft fences for corner lots to 6 foot fences, and gave us more yard on the east side of our house too. A 4 foot fence does not allow privacy for your back yard pool.

Maybe an amendment should be made to the C&R. Look to see what your Bylaws says about who can propose an amendment, and follow the procedures for amendments with your Board.

I wish you luck,
Audrey

DawnB
(West Virginia)

Posts:12


02/05/2006 8:36 PM  
Hello All,
I went and sat to listen at the Board meeting. The fence was not approved and the family was ask to remove the fence because nothing was submitted. The family also has never paid their dues, so seems they are in alot of troble. Now the question is.......How can you make them "remove" this fence? If they do not remove the fence isn't that a court issue and then the HOA pays for a lawyer?

Another issue. As I was at the Board meeting. The board kept mentioning a "By-laws committee" I asked to speak and wanted to know who was head of this By-laws committee. The V.P. is, so is that allowed? I live in West Virginia so that may help with the laws
Thanks for all your input
EdR
(Texas)

Posts:170


02/06/2006 6:30 AM  
DawnB:
The board (unless your bylaws differ) can appoint officers and committees. This is why a board can unseat officers and committee chairs but not directors, because the directors are elected by the membership (membership has to unseat directors by majority (decided by bylaws or CCRs usually a percentage of a quorum) vote, after other percentages are met, like meetings, etc.. A director can be asked by another director or a member of the assn. to RESIGN, but they don't have to.

Re the fence (also check for rules in your CCRs and/or guidelines of architectural control committee to see if they differ, but experience is that the board should discuss the matter and whatever they decide to do rules), but the way it's handled in TX is first a cease and desist order should be given to the offender (in our board it is supposed to be given by the president) but actually even a member can issue a C&D (actually the C&D was told to them verbally at your meeting). IF the project remains (unfinished or finished), the board needs to have their attorney, or they can file an injunction against the offender asking them to remove the fence. Hopefully that will be the end of it, and they will remove the fence, but if not, the injunction stays on file and the court usually contacts someone (the attorney or board if they file--in TX, anyway) within (I think) two years to see if it is to be dropped or renewed (if there was no action in that time). Usually, the offender obtains an attorney to get rid of the injunction and removes the violation, but I must tell you, that if your board doesn't follow thru to make sure that happens, they will lose the respect and teeth in their enforcement. We have a pink fence, garage and house trim to show for that and it's been there 3 years. It is only a matter of time until more obnoxious colors show up and they can't do a thing about them since they didn't about this one.

You as a homeowner can keep on them about the fence, but be prepared for the neighbors to get rude (maybe retaliatory) (if they know you objected or complained)--my experience is that like locks, rules are for honest people. Further, members seldom read their rules before embarking on a project (everyone forgets they signed a PUD at closing to abide by CCRs).
This is not legal advice, of course, just from having been on a board.
EdR

EdR
(Texas)

Posts:170


02/06/2006 6:34 AM  
PS: Meant to also state that the bylaws committee is probably a committee to explain the bylaws. We had such a committee for architectural control and an attorney excerpted the actual rules from the Covenants to make it easier for members to understand and outlined it in categories, i.e., fences, landscaping, home additions, and the rules for each and how to get approval; also how many committee members there had to be (three total, and two had to be on the board of directors). Hope this helps.
EdR
AudreyB
(Florida)

Posts:104


02/06/2006 5:22 PM  
Hi Dawn,

Since these people who have not paid their dues, and did not have approval for their fence face, somewhere it should be written within your Bylays about their consequences:

REF dues: After a period of time has passed the Association can put a lien against their house, and according to what is written in your legal documents, can be foreclosed on. The lien and the foreclosure parts are where the attorney comes in.

REF fence: Still following your legal documents, find where it is written, when the owner is given so many days to comply before a fine can be placed until the situation is resolved. If they do not comply within the time specified, then the Association can fine them, and the fine can be a daily fine, the fine has usually ten days or more before your HOA can place a lien against their home.

Also, about the deed restriction fines: On your computer find and read your state statues for homeowner's association's, what it says about these subjects, when the fine is not paid during a specified time, then a lien can be placed against the home, and if a lien for violation of the deed restrictions, can and does cause the HOA to foreclose on the home as well.

Worse case scenario: If these homeowner's do not pay their DUES, get a lien placed on their home, and after a specified period of time, if the amount due on the lien still aren't paid, then your HOA attorney can file for forclosure. The fence amount of money due on the fence lien (if there is one) should also be mentioned within the foreclousre lawsuit, so your HOA can get their monies due from that lien as well.

It's great to get you seek this knowledge. Knowledge is power. I urge you to use this knowledge in a positive way.

On the other issue, the VP is allowed to be head of the Bylaws. Again,look up your state statues. I believe the VP does not have a conflict of interest here. The bylaws, the articles of incorporation have state statues to advise, if they can or cannot amend these legal documents before they amend anything, AND, the bylaws should tell you the procedure as to how to amend the bylaws and the articles of incorporation, which need to be followed to the letter. So, make sure your VP knows these things too.
Audrey
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