Opinion on Covenant Contradiction

Question about covenant contradictions ... I ask because a HO is asking if it's okay to install a fence in his backyard. We do not currently have any fences in our community.

Our recorded bylaws say all fences require approval of the association, even if it is to surround a swimming pool.

Our ACC policy says no fences shall be allowed except invisible dog fences. Obviously, there's a problem with the ACC clause because it omits permission for swimming pool fences, but notwithstanding that, does the ACC rule contradict the bylaw, which says any fence requires permission, or is considered to simply further clarify the bylaw by saying we will only grant permission for dog fences (text below):

Bylaw: Section 24. Fences and Swimming Pools. No above-ground pools shall be permitted in the Condominium. Any fences shall require the prior written approval of the Developer (as long as the Developer owns at least one (1) Unit and, after the expiration of the Development and Sales Period, the Association, even if a fence is to surround an in-ground swimming pool. Additionally, all fences must comply with all applicable law.

ACC Rule: Fences. No fence shall be allowed except invisible/electronic dog fences in the rear yard only.

Thanks,

Dee,

Well first of all, County Code and perhaps even Michigan State law will require that any pool have a fence surrounding it. That overrules any HOA covenant.

Next, the ACC policy is not the ruling HOA factor, your CC&Rs and ByLaws are. They take precedence over the ACC. The ByLawss state that " say all fences require approval of the association, even if it is to surround a swimming pool."

In my opinion ,there is a direct contradiction of the ACC's and ByLaws--ByLaws rule.

Dee,

If the ACC rules are a part of the CCRs they would have precedence. But if they are stand alone rules then whatever is in your bylaws would take precedence. IMO, the ACC rule needs to be amended to comply with what is stated in the bylaws. Also, I doubt the assn could prohibit a fence around a swimming pool since most cities/co's require one. Since the bylaws state all fences require prior approval, IMO, the intent of this provision was to allow fences, however the ACC or the board would have authority to state the type of fence and the location on the member's property.

FYI, the link posted by Susan pertains to "public" swimming pools. A pool in an HOA community is not a public pool.

Hi Mary...
"FYI, the link posted by Susan pertains to "public" swimming pools. A pool in an HOA community is not a public pool."

I don't want to take this thread off course but thought you might like to know....
Florida law makes a distinction between
private and public swimming pools. Pools
operated by a community association are
designated as public pools. Chapter 64E-9 of the
Florida Administrative Code governs public
swimming pools and contains supervision and
safety requirements. One such requirement
provides that rules and regulations must be posted
in an area legible from the pool deck etc etc etc.

Chapter 64E-9
(3) All pools which do not meet the definition of private pools are public pools.

Ann
Hope you had a Happy Thanksgiving!

My 55+ HOA (126 private homes on indivisual lots) is in Horry County, South Carolina.

The (owners, residents, and their guests only) community pool is classified as a "Class B Public Pool".

This actually makes sense since non-owners (guests) are permitted to use an ammenity which is operated by other people than the 'direct inviters', and therefor need additional protection than if it were a 'backyard' (private) pool.

Hard to explain, but makes sense when the 'code' is read.