HOA Bylaws for Fences - Lawsuit Michigan

Started by RickP5 • 46 replies • 661 views

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RickP5 (Michigan)
Posts: 10

Posted:

I would like to know if anyone has experience with an HOA that has basically decided after 27 years to invalidate the meaning of the no fences in the backyard except for pools and a small dog run bylaw.

The situation is that I discovered on the (my Sub) facebook page that the HOA had determined that all previous HOA's had misinterpreted the no fence bylaw.
So without written notification and only by dialogue on facebook the HOA group decided to give approval of fences to individuals if they wanted one.
My next door neighbor celebrated by saying they had found a loophole in the bylaw so proceeded to begin fence installation preparation. So I hired an attorney to look into the matter and he said the only way to stop this
was to submit a lawsuit (restraining order against) my neighbor and suit against the HOA to prevent further fence installations.

My lawyer indicated that this would be a case that should be settled quickly which is now in jeopardy because my first lawyer quit my case based on some hearsay about his handling the case that he said I was tarnishing his reputation.
So I had to hire another lawyer quickly because of the phase we were in (mediation) and my new attorney indicated that my former lawyer botched the case and now we are up against the wall with the defense lawyers wanting the case dismissed under a deadline of 11/10 which my current attorney is pushing back on. The judge would not allow the restraining order and is forcing arbitration that I was informed is basically how judges try and get settlement.
Arbitration at $450/hr and I for the life of me cannot understand the logic since the question is only is the meaning of the bylaw to not allow fences in the yard or not.

I am the original owner of the property and was told by the builder that no fences in the backyard unless specified as shown below. I also contacted the builder (email from secretary) and the person who signed the HOA indicated to his best recollection the fence clause was as exactly as stated to not allow any fences unless as specified below.
I have endured great expense to try and resolve this and have been attacked by residents of the small faction of our 188 home sub where as my wife received threatening emails regarding lawsuits against us for numerous absurd claims.

I have attached the HOA pasted the fence section from the attached HOA rules.
By the way the interpretation of this "No Fence or wall which surrounds the perimeter" was interpreted by our HOA is that this only pertains to the perimeter around the entire lot fron to rear and anything else is permitted in the back as long as it meets township rules.
Well the township codes include a no fence requirement for the front yard (attached) so if the lawyer meant that when he wrote the bylaw I am flabbergasted,

Fences and Walls. No fence or wall which surrounds the perimeter of a Lot shall be permitted.
Fences side yard adjoining the public or private street shall not exceed forty-eight (48) inches in height, in all
fences shall comply with the provisions of paragraph T of the Article VII. Where such fences abut a Common
Area, no fence shall be erected except on condition that a Lot Owner of such Lot regularly cuts, cleans and
maintains the area of such a Lot between said fence and the Common Area. Wrought iron and other decorative
fencing (but not fencing of the wire type commonly known as “Cyclone Fencing”) may be used on any Lot for the
purpose of enclosing a permitted swimming pool, in locations approved by the Committee. Any such approved
and permanent fencing shall have a vertical balustrade pattern and no additional ornamentations. All fences are
subject to approval by and permitting requirements of the Township and shall not exceed the minimum height
permitted by the Township.

Thank

📎 Attachments (1):

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📄11112465223154.pdf(291 KB)

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By RickP5 on 11/12/2023 4:46 AM

I have attached the HOA pasted the fence section from the attached HOA rules.

What you attached says at the bottom "Charter Township of ___ ____." It looks like a city/township ordinance. Is this what you intended to attach?

Note to readers, in Michigan, the "covenants" are often listed in the bylaws section. Michigan does not have a HOA statute.

RickP5 (Michigan)
Posts: 10

Posted:

I intended to attach the township codes listing for fences.

The portion I pasted is from the HOA.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By RickP5 on 11/12/2023 6:30 AM

I intended to attach the township codes listing for fences.

The portion I pasted is from the HOA.

What does "from the HOA" mean?

Is what you attached a part of the HOA Bylaws?

Communicating on this venue is not easy. I urge being precise.

TerriS6 (California)
Posts: 3,284

Posted:

Not to minimize your plight but D.i.b. is my favorite.

TerriS6 (California)
Posts: 3,284

Posted:

What does your Declaration say about fencing? If the understanding hasn't changed for 27 years, the criterion must be in the Declaration. That can't be changed without a vote of the membership.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By RickP5 on 11/12/2023 6:30 AM

I intended to attach the township codes listing for fences.

The portion I pasted is from the HOA.

Oh sorry. You mean this is from the HOA (bylaws/Declaration I presume):

Quote:

Posted By RickP5 on 11/12/2023 4:46 AM

Fences and Walls. No fence or wall which surrounds the perimeter of a Lot shall be permitted.
Fences side yard adjoining the public or private street shall not exceed forty-eight (48) inches in height, in all
fences shall comply with the provisions of paragraph T of the Article VII. Where such fences abut a Common
Area, no fence shall be erected except on condition that a Lot Owner of such Lot regularly cuts, cleans and
maintains the area of such a Lot between said fence and the Common Area. Wrought iron and other decorative
fencing (but not fencing of the wire type commonly known as “Cyclone Fencing”) may be used on any Lot for the
purpose of enclosing a permitted swimming pool, in locations approved by the Committee. Any such approved
and permanent fencing shall have a vertical balustrade pattern and no additional ornamentations. All fences are
subject to approval by and permitting requirements of the Township and shall not exceed the minimum height
permitted by the Township.

Thank

TimB4 (Tennessee)
Posts: 21,059

Posted:

Rick,

First and foremost, welcome to the forum.

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ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By RickP5 on 11/12/2023 4:46 AM

So I had to hire another lawyer quickly because of the phase we were in (mediation) and my new attorney indicated that my former lawyer botched the case and now we are up against the wall with the defense lawyers wanting the case dismissed under a deadline of 11/10 which my current attorney is pushing back on. The judge would not allow the restraining order and is forcing arbitration that I was informed is basically how judges try and get settlement.
Arbitration at $450/hr and I for the life of me cannot understand the logic since the question is only is the meaning of the bylaw to not allow fences in the yard or not.

The difference between mediation and arbitration is large. Do you know for sure which it is?

Judges do pressure parties to go into mediation. It saves the taxpayer money. Generally mediation gets results more quickly.

Do your bylaws require attempting mediation or arbitration? How about state statutes? Because if not, then I think you only reached this point because you agreed to mediation (or arbitration).

If this is mediation, then I would think you could say no to everything. Parties often try mediation only to find they cannot agree. Then the parties return to the judge, and the judge schedules a trial et cetera.

Arbitration may force upon you a decision you do not like. It just depends. It is a big topic. Others here may have more intelligent things to say about arbitration.

I do not think trying to re-do your strategy, via suggestions on this forum, is a good idea. Maybe you want validation from people here, but I think this too is not going to get you anywhere. I think you need to take this one step at a time at this point, recognizing where you are and what options remain.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Rick,

What you were told by the developer is considered non-binding.
What is written in the governing documents is considered a binding contract.

Quote:

I have to say that I agree with the attorney regarding perimeter.

This is because taking that line has sentences following it that discusses fences that abut common area and adjoining property (which can only be done, looking at the definitions of the words abut and adjoining, by having a fence on the property line)

The rest of your citation simply specifies the materials, style and compliance with county/municipality codes (in addition to HOA covenants/bylaws).

BTW: It is common for Association documents to repeat what applicable statutes specify. This way, if the statute changes the restriction may still be enforceable.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TimB4 on 11/12/2023 7:34 AM

I have to say that I agree with the attorney regarding perimeter.

Let me clarify: I agree with the HOA attorney and the HOAs interpretation.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Rick,

Does your citation include Paragraph T or Article VII (as it is referenced in what you cited)?

TerriS6 (California)
Posts: 3,284

Posted:

If an owner's fence "surrounded" the perimeter of his lot, the fence would not be on his property.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TerriS6 on 11/12/2023 7:41 AM
If an owner's fence "surrounded" the perimeter of his lot, the fence would not be on his property.

It would if it was directly on the property lines.

TerriS6 (California)
Posts: 3,284

Posted:

That would be "on" the perimeter. "Surround" means outside the perimeter.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/12/2023 7:41 AM
If an owner's fence "surrounded" the perimeter of his lot, the fence would not be on his property.

I tend to agree.

If the covenant was referring to a fence sitting on the lot boundary, then I think the covenant would have been written to say "is on the perimeter" instead of "surrounds the perimeter."

TimB4 (Tennessee)
Posts: 21,059

Posted:

Well, I can see your point.
I also see the context of the use of the word and I hope you can see my point.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Lets use your perspective of that interpretation. Then, per the citation a fence can then be on the perimeter because it's not "surrounding the perimeter"

ElleN (Idaho)
Posts: 4,420

Posted:

Ambiguity is interpreted in favor of free enjoyment of land? Which says to me that if a court found the phrase ambiguous (including after reading the entire bylaws/Declaration, looking for indications of the intent within the governing documents), then the court would rule in favor of the land owner and allow fences on the lot boundary. (A "party fence," I suppose.)

ElleN (Idaho)
Posts: 4,420

Posted:

From the net, regarding "perimeter":

The noun perimeter refers to the border of an enclosed space. The perimeter of a house is its property line. For a country, it would be that country’s borders.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RickP5 on 11/12/2023 4:46 AM

Arbitration at $450/hr and I for the life of me cannot understand the logic since the question is only is the meaning of the bylaw to not allow fences in the yard or not.

Rick,

I know it's expensive. One thing that will happen (win or lose) is that the interpretation of that section of the bylaws will be resolved.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By TimB4 on 11/12/2023 7:59 AM
Lets use your perspective of that interpretation. Then, per the citation a fence can then be on the perimeter because it's not "surrounding the perimeter"

Good point. I'm sure they intended to prohibit perimeter fences but that's not what they wrote. And didn't it say no front yard fences? It that case it would not be possible to build a perimeter fence.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By TimB4 on 11/12/2023 8:15 AM

Rick,

I know it's expensive. One thing that will happen (win or lose) is that the interpretation of that section of the bylaws will be resolved.

More important to see what the Declaration says. That could make arbitration unnecessary.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TerriS6 on 11/12/2023 8:17 AM

More important to see what the Declaration says. That could make arbitration unnecessary.

Based on Elles comment:

Quote:

Posted By ElleN on 11/12/2023 6:05 AM

Note to readers, in Michigan, the "covenants" are often listed in the bylaws section.

I will expect that what was provided is the covenant.

JoeN6 (Virginia)
Posts: 94

Posted:

“ no fences in the backyard except for pools and a small dog run “

I’m assuming the observation is a fence in a backyard is being constructed where there is no pool or no small dog run.

Let’s say Nelson neighbour is constructing just that . Nelson plans to go to the local Walmart and purchase an inflatable pool and huff and puff and blow up his “pool” and sleep well at night because he is kind of assured that no child may wander in and fall in and drown. And or he has a visiting relative regularly so his fence is “ containment “ for her chiwowow. Furthermore s long as his surveyor located fence is one tenth of a foot inside the property line it is “in” the backyard.

I don’t intend to make fun of the OP s situation but , there exist people who are going to somehow manipulate the ccrs rules declarations call them what you want , to get what they want .

Count your lucky stars this is not in virginia , where a property owner can use the court system to have his neighbour pay for half of the fence .

JoeN6 (Virginia)
Posts: 94

Posted:

….. along the shared boundary line between the properties

JoeN6 (Virginia)
Posts: 94

Posted:

….. along the shared boundary line between the properties

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JoeN6 on 11/12/2023 8:44 AM
“ no fences in the backyard except for pools and a small dog run “

This is not what the (apparent) covenant says. This is the OP's interpretation.

KerryL1 (California)
Posts: 14,550

Posted:

DO you have minutes of the recent meeting when the Board changed the fence rule? Without a Board decision done by voting at a board meeting or taking action without a meeting, there IS no new rule.

What is the exact name of the document that doesn't permit fencing. "Bylaws" rarely contain restrictions about such things as fences exterior house materials, roofing, etc. The declaration very well may, too, but to change the declaration nearly always requires a vote by the owners.

Tell us if the Bylaws and the Declaration are two separate documents as is typical, even in Michigan.

Are you saying that the township citation is exactly th same as what is in one of your HOA's governing documents?? If not, please cite exact words in your HOA's document

This restriction are found either in your Declaration of Covenants, Conditions and Restrictions or in an HOA's regular rules & regulations or in some sort of Architectural Guidelines or Standards.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KerryL1 on 11/12/2023 9:07 AM
Tell us if the Bylaws and the Declaration are two separate documents as is typical, even in Michigan.

Based on reports at this forum, I would not say this is "typical" in Michigan.

ElleN (Idaho)
Posts: 4,420

Posted:

One can google on some of the phrases that the OP quoted from his governing docs and turn up similar phrasing in at least one other HOA's (online) governing doc in Michigan. The latter is in an amendment to the Declaration.

The OP may very well have confused "declaration" and "bylaws."

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Rick

Are you in favor of backyard fences or not? In my last HOA of single family homes would could fence in their backyard and the fence could go no further forward then the back edge of the house. The one exception was it could go further forward to align with a neighboring fence. I am in favor of backyard fences but backyard only.

RickP5 (Michigan)
Posts: 10

Posted:

The last minutes that were published were in August 2022 and nothing after that.

The bylaw that I copied that indicates no fences is a document of DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS filed in Oakland County in the state of Michigan.

It has been the same from when the subdivision was built and there has never been a dispute until the interpretation by the current association done without any notice to the homeowners.

I tried to attach the file but received an error.

I will try again.

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄11112465745871.pdf(1.3 MB)

RickP5 (Michigan)
Posts: 10

Posted:

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄1111247048971.pdf(1.3 MB)

TerriS6 (California)
Posts: 3,284

Posted:

Well, your setbacks are 40' in the front, 35' in the back and 12.5' on both sides so a fence couldn't be built in the setback without a variance, it seems.

KerryL1 (California)
Posts: 14,550

Posted:

The declaration says 2/3 of owners must vote to approve a change of the declaration. The Board has no authority to amend them. There IS NO”bylaw” involved. I hope others who’ve been contributing to this thread will discuss implications

Has it been settled what the restriction in the w s declaration actaully means?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This is more of a case of putting the carriage in front of the horse. The owners in majority want fences they can indeed decide the rules and approvals to do so. However, this must be adapted per the voting and filing process inside the CC&R's and By-laws. The HOA members have a right to change the HOA rules if they want to agree in whatever the majority is in your HOA. That can be 51% to 100%. Read the documents to find out what the percentage is. Then everyone has to vote and have the rules rewritten and filed at the courthouse. A lawyer needs to be involved. A HOA one or a corporate/contractual law specialist may be best.

My situation is that we are allowed fences in our HOA. They have to be 3 feet from the back and the property lines. I had approval for a fence but it was during Covid time frame. My contractor is the best around and was 3 months behind. My house was the first between neighbors to move in. My neighbor to my left moved in and put up a fence without HOA approval or even telling me. Put it right on the property line. Nearly blocked my hose bib access. My other neighbor to the right did tell me they were installing a fence. I told them I had to re do my fence proposal because of the left neighbor. My contractor was coming out to re-bid/measure on Thursday. Monday their fence contractor installed their fence. It fell right in first 1/3rd of my Square bathroom window. Again had to contact my contractor to modify my design again! This time though the HOA demanded that I get permission from my neighbors to connect to their fences! I told my HOA that I am NOT attaching to their fences. I am just going to have a Front and a back fence. My neighbors fences are in the wrong.

So fences do make great neighbors and I encourage getting them. Just realize that a HOA ONLY issues approval for a fence. They can regulate the size, stain, and appearance. It does not maintain or pay for them. You also have to be aware of your local laws for fences. My other HOA we had to have someone install a 4 foot fence because they were on a corner lot. The 6 foot fence prevented view of the Stop sign. Plus it made it appeared the fence was in the front yard which was not allowed.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

The architectural control committee has a lot of power but structures do have to be "harmonious." I would check the requirements for that committee granting a variance.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Personally, I would ask that the attorney request a ruling from the judge on the interpretation of that paragraph.

I doubt any arbitration or mediation will resolve the issue.

KerryL1 (California)
Posts: 14,550

Posted:

In hi s OP, RickP wrote: "...I discovered on the...my Sub) facebook page that the HOA had determined that all previous HOA's had misinterpreted the no fence bylaw. So without written notification and only by dialogue on facebook the HOA group decided to give approval of fences to individuals if they wanted one."

So, Rick, you're telling us that there is NO written decision by the board of directors allowing fences? There is no "official" wording in meeting minutes or in a notice sent to Owners by the board, perhaps via your management company, if you have one?

How in the world is any attorney "helping" you if there is no honest-to-gawd new official rule, or amendment of the restriction in your declaration? Just WHAT is this attorney examining??

Agree with Terri that the ARC has a lot of power--will reread the declaration later.

RickP5 (Michigan)
Posts: 10

Posted:

There was no change to HOA rules by the board.
The board had an internal HOA meeting and decided the section that indicated no walls or fences around the perimeter of the lot was misinterpreted by all past boards and if any fences were denied by them they were wrong.

There was never any notice sent out that the rule that was in place 27 years and never changed. I didn't find out about it until my wife was on the facebook page for our sub said our next-door neighbor was putting a fence installed.
So there was never any notification to all the impacted homes in the sub and when I contacted the HOA president he said if I didn't like the new fence ruling then move. By the way the HOA president was the first person to put up a fence in his yard after the new ruling.

My lawyer filed for a temporary restraining order against my neighbor to halt their fence construction and against the HOA board for not upholding the Declarations Of Covenants Conditions And Restrictions.

Literally the HOA board took exception to a rule that was in place for 27 years and deemed it invalid and commenced allowing fences in our sub.

There is a sub just east of us that has the same Declarations ... that we have verbatim and have never had fences or any challenge to such which my current attorney is the attorney of note for their sub.

I have talked to at least 30 neighbors and none were aware that the rule had just been reinterpreted and no longer meant what all the owners thought. The original owners like myself were told that no fences were allowed and he consensus is overwhelmingly for no fences.

I hope this explanation helps.

Thank You

RickP5 (Michigan)
Posts: 10

Posted:

TerriS6 (California)
Posts: 3,284

Posted:

Maybe some points in this case will help you. https://findhoalaw.com/pacific-hills-homeowners-association-v-prun/

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By RickP5 on 11/12/2023 4:46 AM
I would like to know if anyone has experience with an HOA that has basically decided after 27 years to invalidate the meaning of the no fences in the backyard except for pools and a small dog run bylaw.

The situation is that I discovered on the (my Sub) facebook page that the HOA had determined that all previous HOA's had misinterpreted the no fence bylaw.
So without written notification and only by dialogue on facebook the HOA group decided to give approval of fences to individuals if they wanted one.
My next door neighbor celebrated by saying they had found a loophole in the bylaw so proceeded to begin fence installation preparation. So I hired an attorney to look into the matter and he said the only way to stop this
was to submit a lawsuit (restraining order against) my neighbor and suit against the HOA to prevent further fence installations.

My lawyer indicated that this would be a case that should be settled quickly which is now in jeopardy because my first lawyer quit my case based on some hearsay about his handling the case that he said I was tarnishing his reputation.
So I had to hire another lawyer quickly because of the phase we were in (mediation) and my new attorney indicated that my former lawyer botched the case and now we are up against the wall with the defense lawyers wanting the case dismissed under a deadline of 11/10 which my current attorney is pushing back on. The judge would not allow the restraining order and is forcing arbitration that I was informed is basically how judges try and get settlement.
Arbitration at $450/hr and I for the life of me cannot understand the logic since the question is only is the meaning of the bylaw to not allow fences in the yard or not.

I am the original owner of the property and was told by the builder that no fences in the backyard unless specified as shown below. I also contacted the builder (email from secretary) and the person who signed the HOA indicated to his best recollection the fence clause was as exactly as stated to not allow any fences unless as specified below.
I have endured great expense to try and resolve this and have been attacked by residents of the small faction of our 188 home sub where as my wife received threatening emails regarding lawsuits against us for numerous absurd claims.

I have attached the HOA pasted the fence section from the attached HOA rules.
By the way the interpretation of this "No Fence or wall which surrounds the perimeter" was interpreted by our HOA is that this only pertains to the perimeter around the entire lot fron to rear and anything else is permitted in the back as long as it meets township rules.
Well the township codes include a no fence requirement for the front yard (attached) so if the lawyer meant that when he wrote the bylaw I am flabbergasted,

Fences and Walls. No fence or wall which surrounds the perimeter of a Lot shall be permitted.
Fences side yard adjoining the public or private street shall not exceed forty-eight (48) inches in height, in all
fences shall comply with the provisions of paragraph T of the Article VII. Where such fences abut a Common
Area, no fence shall be erected except on condition that a Lot Owner of such Lot regularly cuts, cleans and
maintains the area of such a Lot between said fence and the Common Area. Wrought iron and other decorative
fencing (but not fencing of the wire type commonly known as “Cyclone Fencing”) may be used on any Lot for the
purpose of enclosing a permitted swimming pool, in locations approved by the Committee. Any such approved
and permanent fencing shall have a vertical balustrade pattern and no additional ornamentations. All fences are
subject to approval by and permitting requirements of the Township and shall not exceed the minimum height
permitted by the Township.

Thank

I think it comes down to this: the wording from your governing documents is absolutely terrible. My own interpretation is that fences are generally allowed, but they cannot encompass the entirety of your lot. So a fenced-in backyard would be allowed.

If the Board's opinion is simply that previous board have misinterpreted this, then there is no rule being changed and no minutes or record is required.

Probably the best, though difficult, solution is for the community to decide what they want the rules to be, then amend your documents accordingly with more clear language.

KerryL1 (California)
Posts: 14,550

Posted:

If there is nothing in the minutes, how do Owners know what the "reinterpreted wording" is? Face book? Really?

There needs to have been a motion, a board vote to state exactly what the new interpretation is. If this action was taken without a meeting, h Board needs to pale the new wording in the next Word meting's minutes. This new interpretation, moreover, as common sense tells us, needs to go out to owners as an official communication from the Board. The ARC needs an official reinterpretation to help it make decisions or recommendations.

RickP5 (Michigan)
Posts: 10

Posted:

Your questions are spot on and I are exactly what many other neighbors have been asking but with no response from the HOA committee.

They operate under the radar and have made no effort to actually inform the neighborhood by written correspondence.
I was informed by my attorney to drop the lawsuit because it would take 50,000 to fight it in court so I did so.

The system to go against the HOA legally is completely broken to allow a simple interpretation that could have been decided by a judge but was allowed to cause such a financial burden I could not continue.

DeanJ
Posts: 1,786

Posted:

It appears some fences are permitted.

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