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Subject: Making of new rules re Fences
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04/21/2006 8:51 PM  
In a set of Minutes from a board meeting within the last year (I am not on the board any longer); I noticed that the ACC chairperson had the president announce to the board and members in attendance that he wanted the management company to stop citing fences (on drive-thru inspection) that were new and didn't have approval "as long as they looked good".  Our deed restrictions (CC&R) state that all new structure fences and any fence over 6 feet should be approved by AC Committee and fences over 6 feet should be agreed upon between neighbors affected by the fence.  My question is:  since this appears to be a change in the CC&Rs or R&Rs, shouldn't the board have voted on this and shouldn't the homeowners be apprised of this (in fact the membership should probably vote on it)?  I believe that what looks good to one person, may not to another, but bottomline how can a director decide to change the laws?  And, this guy is a one-person AC Committee--he has not gotten two other members (one other from the board per CC&Rs) and he's running the show--I'm also wondering who approves his aps if he has them since you cannot approve your own?  Roger, is this legal?


04/21/2006 9:16 PM  
Roger, is this legal? EdR

Nope. The restrictions in the CC&Rs need to be enforced unless they are superceded by higher order laws or if they are outdated in such a manner that if taken to court the HOA would lose.

A vote of the Board would not have any meaning when it conflicts with the CC&Rs. They should vote to appoint 3 members to the ACC and to require enforcement of the restrictions. They could also make Rules which comply with the CC&Rs. A vote of the homeowners would not help unless the vote is to amend the CC&Rs, or to appoint 3 members to the ACC and to require enforcement of the restrictions.



04/22/2006 8:41 AM  

Ed, our Agreements call for enforcing the CC&Rs. If we were the Management Company I would tell the President NO. We can not comply with your request because it violates our contract.  Can't believe I did not include this in my first reply!  Obviously I wasn't thinking clearly  

The President, the Board, and every members must comply with the Declaration or they are cited when we supply their property manager. Ask us to do otherwise and we would terminate the Agreement.



05/11/2006 10:28 AM  
Is this standard in most professional property management group contracts? Do most HOAs with property managers have the management group read the covenants/by-laws/R&Rs and then follow the given procedure for violations, or do they make the board decide on every infraction?

Our property manager not only will not cite anyone, but when complaints have been given to her, she ignored them in the past when it was the developer controling the board. Now that the HOA is in the hands of the owners, she just forwards the complaints to the board and waits to hear from the board what to do. Furthermore, she ARGUES about doing so in favor of the violator--and is letting the homeowners in on the fact that "she doesn't want to do this, but the board is demanding that she do it."

UGH! Bad situation that we are in. Unfortunately, we have to ride out the 90 days since our notice of termination to them.


05/11/2006 11:10 AM  
Brad, our Property Management Agreement is never standard; it is tailored to whatever the two parties agree. Regarding most HOAs and other MCs my mother told me "I didn't have anything good to say then keep my mouth shut."

We always review and refer to the controlling documents and enforce restrictions. We provide all of the violation notices with pictures to the Owner and e-mail copies to all Board members. The Board gets more involved as the Hearing Committee prior to any assessment for an unresoved violation.

Here is an example from one of our Agreements:


6.0 Architectural Modification Review Committee

The Managing Agent will provide assistance to the Architectural Design Review Committee (DRC) as requested. If desired, the Managing Agent will provide a DRC form to use for a request to modify. The approved request forms provided to the Managing Agent will be monitored for progress and completion.

6.1 Inspections

The Managing Agent will inspect the Community once a week to determine the general condition of the grounds and Architectural and Covenant issues. Inspection shall be viewed only from the street and common areas; no entry onto a homeowner’s property will be made without their approval. The Managing Agent will investigate all Owners complaints of problems and potential Covenant violations.

6.2 Covenant and Rules Compliance

If a Covenant or a Rules and Regulations violation is observed the Managing Agent will first, digitally date photograph the violation when applicable, then attempt to resolve the issue with the homeowner face to face, phone, and/or e-mail. If a violation to a regulation can not be resolved within agreed verbal timeline, the Managing Agent will issue a warning letter. This letter will include the observed violation, photo when applicable, reference to the controlling regulation, a reasonable time limit for correction (often 10days), and advise the owner of their right to request a Hearing before the Board of Directors if they think they are not in violation. The managing agent will also maintain a log with the status of all violations; this log will be forwarded via email to all HOA board members weekly. If any homeowner requests a Hearing, the managing agent will immediately notify the Board and forward all correspondence relating to that homeowner’s violation. After the initial correspondence there is a charge of $10.00 per correspondence. The Managing Agent cannot provide assurance that an issue will be resolved given that services provided are only administrative. The Managing Agent will not take action which is contrary to the law or which is perceived to be dangerous.
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Forums > Homeowner Association > HOA Discussions > Making of new rules re Fences

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