Fencing Approal

I live in a maintenance provided community who has strict rules on fencing. They allow the townhomes with patios to fence one foot around the patio area. I happen to have one of the higher elevated townhomes, so I have a deck rather than a patio, so therefore, fencing is not allowed. When I purchased the home some years ago, I was mistakenly told by the real estate agent that I could fence. After I moved in and submitted the request for a fence in my backyard, I was denied approval. After living with this decision for a few years, I decided to approach the head of the HOA at the annual meeting in Jan 2011. She seemed open to the idea of my request because I told her I would take responsibility for the lawn maintenance inside the fenced area. However, she turned me over to the property maanager and he asked me to submit my "formal" request in writing and they would consider it. It has now been 45 days since I have submitted this request (I made sure the property manager received the request) and I have not gotten back any kind of response. According to their CC&R guidelines, the review committee has 30 days to respond back in writing to the resident with a decision, and if they don't, "then permission for the change is deemed granted."

My question is this: Would that 30 day review period apply in this situation? I know the CC&R guidelines state "no fencing" for my type of home, but, the HOA "opened the door" so to speak for my request. I would have never sent in the written request had they not welcomed it.

Also, I have no intentions of fencing without getting their approval for fear of them taking legal action against me. I would however, like a little leverage in trying to persuade them. :-)

Thank you in advance for any comments of suggestions.

KD,

Welcome to the forum.

Technically, since you submitted the request in writing, the 30 day limit would apply. However, unless you have something in writing saying that they got it, you have no basis for the time line to begin (as you would have to prove when they received it). However, since you already stated that you have no intentions of building your fence without approval, this is a mute point.

Please note (for others reading this thread), you can not receive a disapproval after the 30 day time line and then claim that it has been over 30 days so the request was already approved. That argument would only hold up if you actually built the item you requested permission for.

If you are not aware, CC&Rs and Guidelines might perform the same function but they are two very different things.

CC&Rs are the covenants, conditions and restrictions you agreed to comply with. Amending the CC&Rs require membership approval.

Guidelines are the standardizations the Board established to give guidance on what changes would be authorized or (usually) denied. They can typically be changed by Board of Directors. This is where the Association might say your house has to be painted a certain color.

Sometimes, the Association causes the confusion. Lets take the example that you want to paint your house purple. the CC&Rs specify that you must get permission to make any exterior changes. The guidelines say houses must only be painted white. You didn't read your documents and painted the house purple. Shortly after you get a letter from the Association saying "you are in violation of the guidelines for painting your house purple" when in reality, you would be in violation of the CC&Rs for not getting permission prior to painting your house purple. The guideline only specified to the approving authority not to approve any request to paint a house purple.

The reason I point this out is because if your CC&Rs say you can not have a fence, the Property Manager can not approve one, even if the Board says you can have it. This is because you would be in violation of the CC&Rs and only the membership can change the CC&Rs. However, if the guidelines say you can not have a fence, then the Board could authorize and have the Property Manager approve the fence - because the Board can typically override or change the guidelines.

If neither the CC&Rs or guidelines prohibited the fence, then it would be at the whim of the approving authority based on past precedence and/or their personal taste/opinion.

Tim

Hi KD:

Per your statement:

“I know the CC&R guidelines state "no fencing" for my type of home.”

A fence potentially cannot be approved unless the CC&R’s are amended by proper procedure and vote of homeowners. The board and yourself as a homeowner could possibly run into legal litigation issues if the CC&R’s are violated and another homeowner disputed you having a fence that violates the governing documents.

I would recommend having the issue discussed at a board meeting and request putting an amendment before the membership to make the appropriate changes needed. You might also get with other homeowners who have similar type home as yourself and maybe get homeowners to sign a petition regarding the proposed change.

KD3,

As Janet pointed out your posting has contradictory statements. Let me summarize per your postings:

"... strict rules on fencing. They allow the townhomes with patios to fence one foot around the patio area."

"I happen to have one of the higher elevated townhomes, so I have a deck rather than a patio, so therefore, fencing is not allowed. "

"I was mistakenly told by the real estate agent that I could fence."

"After I moved in and submitted the request for a fence in my backyard, I was denied approval."

"I decided to approach the head of the HOA . . . She seemed open to the idea of my request because I told her I would take responsibility for the lawn maintenance inside the fenced area."

"property manager . . asked me to submit my "formal" request in writing . . . It has now been 45 days since I have submitted this request (I made sure the property manager received the request) and I have not gotten back any kind of response."

"According to their CC&R guidelines, the review committee has 30 days to respond . . . if they don't, "then permission for the change is deemed granted." "

"I have no intentions of fencing without getting their approval for fear of them taking legal action against me."

"I would however, like a little leverage in trying to persuade them"

As I, and others pointed out, depending on where the rule is physically located about fencing, the Board might not have any authority to grant approval for the fence without amending certain documents.

If I was on the Board reviewing your application, the concerns would be:

1. Do the CC&Rs prevent your lot from having a fence. If it does - request denied. If they don't what procedures are required to be followed to change the guideline that prevents the fence - does the board want to change those guidelines.

2. Is the fenced in property considered common area or exclusive use common area? If it is considered common area - request denied because the CC&Rs usually grant all members right to access the common area. If the area is exclusive use - further consideration warranted.

3. If we grant your lot a fence, how many others will want to have a fence and how will that change the look of the neighborhood.

4. What is our timeline to respond - do we need to deny the request due to the timeline vs. having the time to properly investigate the answer to these questions.

KD3,

If you build the fence without permission and the fence is denied in the CC&Rs, you might lose any legal case about the fence. If you build the fence and the fence is not in the CC&Rs, it's a 50/50 chance of winning. The largest argument for the HOA being that you were denied the fence once already.

However, since you stated that you do not want to face any potential legal action, I would suggest you ask to address the board about this issue. This way you will be able to address any questions or concerns in person that the Board has.

Tim

Thanks once again for the replies. Let me provide some clarification to some of those replies:

The restrictive covenants are enforced by our ARC (Architectural Review Committee) and as a resident, I was given a booklet of the "rules" that are enforced. Under the fencing section, it states that if a fence is installed it must be first approved by the ARC and then can only be installed around the concrete patio and must extend one foot out from the concrete. There is nothing in the covenants that specifically state that a home with a deck cannot be fenced. I (and other residents) have only been verbally told at HOA meetings and by the property managers that we cannot fence because we have decks.

I was given permission by the property manager (I have this in an email) to submit a request for a fence. I completed the proper form, referred to the "rule" booklet and quoated the fencing standards from the property that can fence. In this same booklet that contains the restrictions of what external improvements we must have approval on, it states under the procedures:

"In the event the ARC fails to approve or disapprove in writing an application within thirty (30) days after the plans and specifications in writing have been submitted to it, in accordance with adopted procedures, approval will be deemed granted."

My question is only this:

Do I have the right to tell the ARC and property manager that since they did not send me a written response of their decision in thirty days, do I have the right to proceed with my fence?

I will say this....the residents of my community get frustrated with a property manager who does not respond in a timely manner. The forms we submit state that we are to give them 15 days to respond back to us. Several years back, I had an addition build onto my deck without their approval because I got tired of waiting and the builder was going to bump my job until the end of the summer. The property manager never did respond and I have to this date, never heard anything from them. There had been two other residents that had done the same thing. However, this time with the fence, I would be the first resident to install a fence. I know there are other residents that would like to fence their backyards as well, so I'm not sure what reaction I would receive from them.

Hi KD:

I agree with Tim, we are not attorneys and we also cannot physically see your documents to verify certain information. You keep referencing restrictive covenants and book of rules, but this does not fully disclose exactly what the documents are that you reference.

If your document states in the title something to the effect of “Declaration of Covenants, Conditions, and Restrictions for XYZ Subdivision” and shows that it is filed with the County Records, then this is the document which is attached to all the homeowner’s properties. The items in this document are issues that in order to change would require majority of homeowners to approve.

Now where you could potentially run into the “technical” issue is per your statement:

"Under the fencing section, it states that if a fence is installed it must be first approved by the ARC and then can only be installed around the concrete patio and must extend one foot out from the concrete."

I know it can seem like a petty difference between “concrete patio” and “wooden deck patio”, but it is a technical point which could potentially be used against someone unless changed.

We want to try and insure that nobody potentially has issues down the road and try to point out various items to be considered regarding any questions. If you need to check out your documentation, then you might shop around for a local attorney. Some attorneys will offer a free consultation.