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Subject: CC&R enforcement with lack of historical enforcement
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JohnS119
(North Carolina)

Posts:8


04/28/2021 8:37 AM  
We have a bit of a dilemma regarding our covenants. They are clear that no metal fencing is allowed however we have 5 homes I know of that have metal fencing. That only equates to about 1.5% of the homes in the neighborhood. From what I can gather none of the homes who have the metal fences put them in without an ARC review and the kicker is they look to be all past the statue of limitations(6 years). We are now faced with a violation for a new fence. The homeowner stated they built based on what they saw in the neighborhood AND our documents don't have a clause to require an ARC review beforehand. Homeowners that have put in ARC requests for similar fences have been rejected which is why we've had no new ones until this homeowner built without any ARC request. So we're faced with the decision to start fines or to let it go based on the inaction by previous boards. The management company that does our drive by inspections should have been identify these but they didn't in the past thus the multiple violations over the statue of limitations. If we find some of the existing fences are less than 6 years old then we would also need to violate those and start potential fines to be consistent.

We will talk to the attorney but my point of conflict is the declaration is clear on this but at the same time if we determine there's a good chance we could be sued and lose I don't know where my fiduciary duty lies. I want to enforce the rules but we have a shoestring budget and can not afford any type of legal action either.

This just seems like a catch 22. Anyone had similar experiences or advice?

Thanks!
CathyA3
(Ohio)

Posts:1888


04/28/2021 9:07 AM  
Posted By JohnS119 on 04/28/2021 8:37 AM
We have a bit of a dilemma regarding our covenants. They are clear that no metal fencing is allowed however we have 5 homes I know of that have metal fencing. That only equates to about 1.5% of the homes in the neighborhood. From what I can gather none of the homes who have the metal fences put them in without an ARC review and the kicker is they look to be all past the statue of limitations(6 years). We are now faced with a violation for a new fence. The homeowner stated they built based on what they saw in the neighborhood AND our documents don't have a clause to require an ARC review beforehand. Homeowners that have put in ARC requests for similar fences have been rejected which is why we've had no new ones until this homeowner built without any ARC request. So we're faced with the decision to start fines or to let it go based on the inaction by previous boards. The management company that does our drive by inspections should have been identify these but they didn't in the past thus the multiple violations over the statue of limitations. If we find some of the existing fences are less than 6 years old then we would also need to violate those and start potential fines to be consistent.

We will talk to the attorney but my point of conflict is the declaration is clear on this but at the same time if we determine there's a good chance we could be sued and lose I don't know where my fiduciary duty lies. I want to enforce the rules but we have a shoestring budget and can not afford any type of legal action either.

This just seems like a catch 22. Anyone had similar experiences or advice?

Thanks!




My thoughts in no particular order:

* How unsightly are these metal fences, and is this issue worth any potential dollars (if there are lawsuits) or time spent and aggravation (if you have to continually fight about it with homeowners)? If this isn't a particularly urgent issue for most homeowners, you risk alienating even those who don't have the fences.

* It's possible that some of the offending homes have new owners in them (ie, they bought the home with the fence already in place). Our attorney has said that it's on the buyer to understand the covenants and make sure any violations have been addressed before buying (Ohio is a buyer beware state). Therefore the HOA would be legally justified in requiring the fence to be taken down. Personal opinion: I have a hard time going after any owner whose only crime was not totally understanding what they were buying, which I think describes most homeowners.

* If you do decide to do something about the metal fences, how likely is it that you'd have to grandfather the existing fences - which owners will continue to interpret as "metal fences are OK"?

Recommended next steps: survey the community to see what the consensus is among the membership. If you get a clear result one way or the other - most people say "meh" or most say "I HATE metal fences" - that may give you some direction. Maybe consider amending your CC&Rs if the majority of the community thinks these fences are OK.

JohnS119
(North Carolina)

Posts:8


04/28/2021 12:13 PM  
Thanks Cathy.

The are not unsightly at all they actually are all nice fences... it's more the rule of the law than the spirit of the law. Our neighborhood is > 30 years old and the CC&R's have never been amended.

The owners are the ones that put most of these up.

The fences that are there today has lead to that interpretation that fences are OK since we're aren't going after them due to the how long they've been installed. Strictly speaking amending the CC&R's with just the removing the metal fencing and removing restrictions on privacy fencing would be agreeable to the neighborhood. However other members of the board would want to place other new "restrictions" in at the same time which I think would kill any possibility of amending the documents. The neighborhood is mostly meh because it's never been reported until we had a board member saw this one going up and reported the violation based on principle alone and the fact they were rejected in the past which has now put us in this predicament. Honestly this was just a problem waiting to rear it's head that we have to address as a board anyway.

JohnC46
(South Carolina)

Posts:10952


04/28/2021 1:12 PM  
John

When you say metal fences I assume you are not talking chin link metal fences. Can you post a link to a picture of the type fence you are talking about. Are they similar to:

https://www.lowes.com/pd/Freedom-Actual-4-5-ft-x-6-31-ft-Pre-Assembled-New-Haven-Black-Aluminum-Flat-Top-Decorative-Metal-Fence-Panel/3850923

Personally I would not have an issue with such.

JohnS119
(North Carolina)

Posts:8


04/28/2021 1:29 PM  
that pretty much is it the aluminum fences just like that. I don't think anybody actually dislikes the fences it's just the way it's worded and we haven't been able to modify the CC&R's. So maybe another question is do we even float the option of not starting fines until we have a chance to amend the documents. Obviously no guarantee we can pass the amendment. If the amendment is simple without a bunch of additional things I think we would pass it.
AugustinD


Posts:313


04/28/2021 1:58 PM  
Posted By JohnS119 on 04/28/2021 8:37 AM
We have a bit of a dilemma regarding our covenants. They are clear that no metal fencing is allowed [snippage] We are now faced with a violation for a new fence. The homeowner stated they built based on what they saw in the neighborhood AND our documents don't have a clause to require an ARC review beforehand.
Yeahbut the covenants say 'no metal fencing allowed.' This new Owner is saying: "Well, I can install a metal fence in violation of the covenants. And the covenants have no requirement for an ARC application for this metal fence. So my metal fence is allowed."

The above is gibberish from the (IMO) mendacious new owner. Here's why: It's irrelevant that the new owner saw others with metal fences and so assumed he could just put one up as well. The covenants are recorded with the county. The courts say this record with the county is legal notice to the new owner and all others. The courts say the new owner did in fact know that metal fences were not allowed. I think the burden is on the new owner to ask the HOA, "What's up? Can I have a metal fence even though the covenants say I cannot?"

You are right to suspect that the tiny percentage with metal fences may have legal significance. If way more than 1.5% of the homes had metal fences, the new owner's case would be much stronger. But for all the new owner knew, the HOA was in a legal dispute with these five or so homes with metal fences, and the fences were en route to being taken down.

If the new owner lawyers up, and given that the board is not all that interested in paying for an attorney, that's when the HOA should consider not enforcing the fence covenant.

I do think you're trying to juggle too many permutations and what-ifs. The Board and you should pick your priorities.

CathyA3
(Ohio)

Posts:1888


04/28/2021 2:00 PM  
Posted By JohnS119 on 04/28/2021 1:29 PM
... snip ... So maybe another question is do we even float the option of not starting fines until we have a chance to amend the documents. Obviously no guarantee we can pass the amendment. If the amendment is simple without a bunch of additional things I think we would pass it.



That is exactly what we did when dealing with a poorly worded restriction that was impossible to reasonably enforce.

I understand about the whole "rule of law" business and I tend to come down on that side of things. At the same time, there is going to be a trade off between the amount of effort needed to enforce something vs. the benefit of doing so. I think you have to apply the reasonableness test to this stuff - why upset and antagonize some owners over something that you believe can be changed in the not-too-distant future?

Our attorney once pointed out that people don't want to live in a police state, and they don't want the community to go downhill which will happen if there isn't enough enforcement. I think there is a sweet spot in the middle somewhere, although sensible folks can disagree about exactly where that middle is.
AugustinD


Posts:313


04/28/2021 2:02 PM  
Posted By AugustinD on 04/28/2021 1:58 PM
P
If the new owner lawyers up, and given that the board is not all that interested in paying for an attorney, that's when the HOA should consider not enforcing the fence covenant.
Importantly, add: And when the board does not enforce the fence covenant, it may face liability from another member for not doing so.

Things are sometimes highly imperfect in HOA land. It's amateurs running the show, after all.
LetA
(Nevada)

Posts:1163


04/29/2021 9:49 AM  
You stated that your governing doc's do not require an ARC review?? WOW!!! that seems odd. Are any of these metal fences protecting a backyard pool?

Anyway, If you are not enforcing your covenants, one can prove that you abandoned such covenants and as money see monkey do, you have a cascading situation on your hands.

Just recently our PM sent out a bunch of Violation letters. One was to a homeowner that installed two satellite dishes to the blackball in the backyard. Problem is those dishes were installed several years ago. As a board member, I said I feel very uncomfortable going after a homeowner on a covenant violation that should have been corrected by past board members years ago.

Y'all need to be proactive instead of reactive.
JohnS119
(North Carolina)

Posts:8


04/29/2021 10:11 AM  
None of these are around a pool. We've had 3 requests in the last 6 years where owner wanted a metal fence and they were all denied. Our management company never flagged any metal fences during their inspections in the past and I'm sure this wouldn't have this new one either except we had a board member bring it up.

We talk to the attorney soon to get legal advice on which way this could play out. I get this is just a mess since we have some that are out of compliance and won't be addressed, others that were requested and denied, and now a new one that was just built and we have to start fines or leave it be. Neither choice is deal and it will have effects in regards to other restrictions with similar issues (but with more widespread non compliance).

JohnC46
(South Carolina)

Posts:10952


04/29/2021 12:22 PM  
John

One purpose of establishing Rules & Regulations is to "clarify" Covenants and Bylaws. As an example, your docs say no metal fences but a R&R could clarify that like no metal means no chain link, no chicken wire, no barbed wire, no metal rails, etc. Other type metal fences may be approved by the ARC.
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