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Subject: ARC committee screwed up…now the homeowner demands the new committee also not follow the rules!
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BrettH3
(South Carolina)

Posts:19


09/16/2021 9:25 AM  
The previous ARC committee lead, by himself, gave approval for a 20 x 20 x 12 section of fence to a homeowner at 6’ tall. Our CCRs clearly state perimeter fences are only 4’ tall. Homeowner erected 6’ tall and now has submitted another ARC because his fence panels are 8’ wide and he wants to extend the fence 4 additional feet on either side. We have a new ARC committee, because the previous one couldn’t be bothered to learn their CCRs, and now this new committee DENIED his request for more 6’ fencing. The board had tried to disallow the 6’ fence but the guy got an attorney…we had to get one, and his has become ugly and costly for both sides. He demanded a “hearing before the board” to discuss his “ denied ARC.” I’ve asked the board to listen, not argue or engage because the homeowner is a screaming, name-calling bully. After he speaks and we listen, I intend for us to adjourn and meet privately and make a determination which will be sent through him via the PM. Just because one committee broke the rules doesn’t mean the next committee must break the rules, right? He’s all ready erected 6’ posts every eight feet all around his property and told the ARC committee that “as soon as ya’ll leave I’m putting up 6’ fences.”
Thoughts?
JohnT38
(South Carolina)

Posts:764


09/16/2021 9:32 AM  
Since you already have an attorney involved I'm assuming you have asked him or her about this. What did they advise you to do?
AugustinD


Posts:1672


09/16/2021 9:32 AM  
First, why isn't the HOA attorney responding to your concerns above?

Second, the Board should formally communicate to the owner that he is not to install fences violating the covenants. Send this communication certified mail, return receipt requested.

Third, the Board should consider paying for replacement of any fence (of this owner's) violating the covenants but that was approved (by mistake) by its ARC.

Fourth, less drama is better. Never use exclamation marks in communications.
BrettH3
(South Carolina)

Posts:19


09/16/2021 9:47 AM  
The attorney advised us to let him have the hearing he asked for, listen, make a determination, and notify the homeowner. We are doing that. The homeowner wrote to the board “ you cannot deny him additional 6’ fencing because the first ARC was approved allowing 6’ fencing 20 x 20 x 12.
JohnC46
(South Carolina)

Posts:11507


09/16/2021 11:12 AM  
Brett

While I do not like his bullying tactics and I personally might turn him down for such, there could be something to say for letting him extend the once approved 6 foot fencing out some. Like it or not, the ARC id approve the 6 foot fencing.
BenA2
(Texas)

Posts:1026


09/16/2021 11:59 AM  
Posted By BrettH3 on 09/16/2021 9:47 AM
The attorney advised us to let him have the hearing he asked for, listen, make a determination, and notify the homeowner. We are doing that. The homeowner wrote to the board “ you cannot deny him additional 6’ fencing because the first ARC was approved allowing 6’ fencing 20 x 20 x 12.



In many cases, a bad decision by the ARC can set a precedent that cannot be easily undone. I would not assume that just because the first ARC did not follow the CC&Rs that it has no effect on the current ARC's decision.

As others have alluded to, I think the question of whether or not you can legally deny the request is a question for your attorney. The answer will vary from state to state and possibly even county to county, depending on court precedents.
SheilaJ1
(South Carolina)

Posts:274


09/16/2021 12:49 PM  
Post the wording of the CCR’s because perimeter fences may only apply to the front.

Another part of the ccr’s may override the height especially if it relates to county law. It maybe at that time county law may limit to 4 but now it’s no longer the case.

4 ft is so short, always been 6 and anything more requires a county permit.


SheilaJ1
(South Carolina)

Posts:274


09/16/2021 1:30 PM  
Posted By JohnC46 on 09/16/2021 11:12 AM
Brett

While I do not like his bullying tactics and I personally might turn him down for such, there could be something to say for letting him extend the once approved 6 foot fencing out some. Like it or not, the ARC id approve the 6 foot fencing.




Totally agree, the op says big ugly mess and costs. Sounds like court is already in the picture.

From experience, a material issue similar happened in ours, wood was not preferred by a new board but was old ARC approved. The the board tried to undo it but gave up. Since then no has put up wood again but if someone did, the HOA would lose big time.
AugustinD


Posts:1672


09/16/2021 2:28 PM  
I am revising my advice. What has arisen comes up here a lot: A previous board (or agent of the Board, like the ARC) did xyz. xyz violates the covenants. A new board is desirous of enforcing all the covenants to the best of its ability. The HOA attorney available for consultation. The HOA attorney bills lot of money per hour. The HOA wants to avoid litigation, especially since there is no choice here that seems to be a slam dunk. Whatever decision the board makes in the short run puts the HOA at risk of litigation from either (1) the owner with the 6-foot fence; or (2) owners who were not allowed 6-foot fences in the past or who maybe want a 6-foot fence going forward. All directors put their King Solomon hats on. If I were on the board with pretenses of being Solomon, and if the county allows 6 foot fences, then I would move to approve the guy's 6-foot fence. I would move to start considering a re-write and amendment of the covenants. Anyone else applying for a 6-foot fence would have the fence approved.

Those who were told in the past that they could have only a four-foot fence: Tell them the truth about what happened. Tell them that fences do not last forever and that they can certainly replace their fence at the end of its life and put in a 6-foot fence.

Respond to anyone really griping about the situation: Sir (Ma'am), I give up 25 hours a week to this board and HOA. It's mostly conflict. I am not paid anything. Unless you are willing to serve on the board, and meant with neighborly respect, it's hard for me to take your criticism seriously.

One goes with the choice that will be hoped to cause the least damage to the HOA.
MichaelS56
(Minnesota)

Posts:275


09/16/2021 3:20 PM  
In our Association the ARC committee only makes recommendations not final approvals. They are not elected by the residents therefore should not any final say.
MaxB4


Posts:1339


09/16/2021 3:26 PM  
Posted By MichaelS56 on 09/16/2021 3:20 PM
In our Association the ARC committee only makes recommendations not final approvals. They are not elected by the residents therefore should not any final say.



In many instances, Board members are also not elected by residents, so why should they have final say?
MichaelS56
(Minnesota)

Posts:275


09/17/2021 1:42 PM  
Max, interesting, I have never heard of board members not being elected. Our board members are also the Association officers.
JohnT38
(South Carolina)

Posts:764


09/17/2021 2:01 PM  
Posted By MichaelS56 on 09/17/2021 1:42 PM
Max, interesting, I have never heard of board members not being elected. Our board members are also the Association officers.




We've had to appoint numerous board members because not enough people wanted to run to fill out the board.
MaxB4


Posts:1339


09/17/2021 2:15 PM  
Posted By MichaelS56 on 09/17/2021 1:42 PM
Max, interesting, I have never heard of board members not being elected. Our board members are also the Association officers.



So if you appointed a Board member, should they have the same power as one elected?
MichaelS56
(Minnesota)

Posts:275


09/18/2021 6:15 AM  
According to our Covenants, all Board members share the same legal responsibilities whether elected or appointed. The committee volunteers are not held to any standard by state law or our governing documents, only Board members.
LoriM15
(Florida)

Posts:34


09/18/2021 6:43 AM  
I am currently vice-president of our board and because our president recently resigned, I will most likely be voted (by the board) president at our next meeting.

I was never elected. Our previous president and vice-president both resigned - I was appointed to fill one spot and another director filled the other. Our bylaws say it doesn't matter if you are elected or appointed - you have the same duties as a director. We filled the empty board spot (from the most recent president) last month with an appointee.

Our staggered terms are for two years. I was appointed soon after the election two years ago so I will be up for election in January. The director who was appointed at the same time as me had only a year left in his term and was elected at the last annual meeting.

The system works very well as long as you can find someone willing to serve, which is not easy in our community.
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Forums > Homeowner Association > HOA Discussions > ARC committee screwed up…now the homeowner demands the new committee also not follow the rules!



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