waiver of covenants

A new homeowner in our townhouse development (in Georgia) is threatening to sue the Association because we may deny her to extend a fence to the rear of her property. Our covenants state that a fence may not be erected on the street side or front of a town home. She is on a corner lot and the fence would be on the street side. She already has a short fence that was built when the house was built (although there is no record, I assume the builder which was one of the members of the Architectural Control Committee allowed the variance).

The Association has been lax in seeing that residents submit an application to the Architectural Control Committee in such things as re-landscaping of a yard, cutting down trees, installing TV disks, etc. The new homeowner says the covenants are null and void, since there seems to be a "pick and choose" what covenants are enforced. I have seen some case law that tends to negate that argument - that enforcement can occur at any time.

Anybody got any better information?
Charles in Georgia

You can "grandfather" the existing conditon but NOT approve any additions or modifications to the structure. If your majority of board members or ACC doesn'ta approve the modification then they can vote to remove the modification if built at the owner's expense.
I would also gently remind the owner that suing your HOA is suing yourself and your neighbors so it wouldn't be in their best interest to pursue this in that route. Truly, since no money has been exchanged there could be no "damages" to sue for. The best they can hope for is to convince the board/ACC their rule should be changed to accommodate their desires. They can do this by getting a majority vote of the members to say their idea is okay and submit that petition to the board/ACC for review. Most likely the homeowner isn't going to take on the petition idea and just keep threatening to sue. So far, it's just a threat and no need for alarm. Plus, it's cheaper for the HOA to "countersue" if anything does happen. May not even need an attorney if the board responds and countersues. Although I don't know what monetary costs would be involved except legal fees/attorney costs. HOA's are allowed to create and maintain their own rules as long as they don't violate local/state/federal laws.

CharlesB4: She really has no grounds to sue the Assn. for a denial of an extension of her fence to the rear of her property and on her street side since the Covenants state..."a fence may NOT be erected on the STREET SIDE or front of a town home". However, it implies that a fence can be erected in the rear of the unit, which she wants to do.

The situation is she wants to EXTEND her short side fence (already erected by the builder on the street side) to CONTINUE to the rear--the rear being allowed. Her situation is difficult because she is on a corner property.

The covenants are not null and void, the community just has not had a Board who is taking their responsibility seriously in fulfilling what the covenant dictates.

It seems you have a situation for owners with corner lots who want to install fencing. It also seems logical for her to continue the existing side fence to the rear, rather than strictly following covenant, having a break between fence sections before the fence to the rear. The 'look' of this corner lot and community will be compromised.

If Board and Committee believe the continued fencing is the way to go for
corner lots only (?) you can suggest a variance be instituted for only these unit owners and IMO, take a member vote. This is

This is one of those situations where Board/Committee/Residents need to come together, discuss, and arrive at a solution which benefits the community as a whole in maintaining the integrity and value of your investments. Keep us informed. Good Luck!

Hi Charles:

You might want to check with your city/county ordinances regarding fences, particularly if she's contemplating building within a setback, and that the property somewhat faces the cul-de-sac. It may be that the city/county ordinances do not allow what she is proposing, in which case you can either deny based on the ordinance as well as your covenants, or report her for a code violation once she does...

The important thing to do is to check on the powers of the ACC. In the HOA I work for, for instance, the committee (actually ARC for us) has guidelines but also judges each project on a case-by-case basis. Also, unless you're in a condo, your ability to enforce anything architecturally on satellite TV dishes is severely limited by the FCC (she may not be aware of that, and think that the HOA is lax in enforcement because of TV dishes).

J. Patrick Moore, CMCA

As JM2 mentions, city/county code may already have the answer here. Sometimes a CC&R just reiterates what is already in code. We recently had a homeowner who lives next to a public path request a variance which would allow her to replace a 4-ft fence with a 6-ft fence because kids walking on the path to school where harassing her dog. The Board was willing to grant her permission to do this, but required her to get a permit from the city first. The city denied the permit because city code only allows 4-ft fences next to common area. They gave safety as the reason: it would be easier for someone to hide behind a 6-ft fence and attack a passing child.

Similarly fences on corner lots are restricted by our local highway dept. Fences must not obscure the "vision triangle" at intersections, which means that fences must be set back at least 20-ft from the roadway.

If your city/county has similar restriction, it wouldn't matter even if your Board did grant her permission. She still wouldn't be able to build her fence because of local code.

You do not take a membership vote on a variance. The members voted for a BOD (and their appointed ACC) to make these decisions.

If a member with a vacant lot submitted plans for a residence would you call for a membership vote? Would the membership in general be qualified to evaluate house plans and blueprints?