ARC Violation (Unapproved Fence Installed)

Started by SandraC1 • 20 replies • 3807 views

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SandraC1 (Virginia)
Posts: 6

Posted:

I'm a new HOA President (3 weeks), no property mgmt. company yet, and I'm faced w/neighbor who put up a fence to cover his 1 acre lot w/o ARC approval. According to our by-laws, the BOD can ask him to remove the fence because he did not seek approval first. Also, the material used (wood) is topic of discussion at special mtg. in few weeks. The community will most likely vote to disallow any wood fences. Any suggestions on what to do first?

RogerB (Colorado)
Posts: 5,067

Posted:

Sandra, I would send the owner a letter advising on the requirement to get ARC approval prior to modifying the exterior of their property. I would quote the CC&R's or send them a copy. Provide them will your ARC form (if you have one) or specify what informations must be included in the request. Advise the ARC will make a decision on whether or not the request will be approved. Let them know if it is not approved they will have to remove the fence. I have attach a sample request form.

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SandraC1 (Virginia)
Posts: 6

Posted:

Roger, thank you for your advice. This is the first decision the Board has to make, so everyone is watching to see how we're going to respond. The developer's representative suggested that we approve his request for a fence, but if the community decides at the special mtg. later this month to disallow wood fences, he must remove his fence and install a fence made out of the approved material (black aluminum)at his expense. The Board is split on this. What do you think?

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By RogerB on 01/07/2007 7:19 PM

Sandra, I would send the owner a letter advising on the requirement to get ARC approval prior to modifying the exterior of their property. I would quote the CC&R's or send them a copy. Provide them will your ARC form (if you have one) or specify what informations must be included in the request. Advise the ARC will make a decision on whether or not the request will be approved. Let them know if it is not approved they will have to remove the fence. I have attach a sample request form.

I agree with Roger. Even if the fenc is eventually approved, I would send the owner a letter of reprimand or even consider a fine for erecting the fence without prior approva.

Ron
SC

SandraC1 (Virginia)
Posts: 6

Posted:

Ron, we would like to fine the homeowner but the developer did not include any fines for any violations in the HOA documents. How do we go about adding these? Does anyone have a general list of fines for violations?

Does the letter that I send need to be sent certified mail? Also, since we haven't hired a property mgt. company yet, I'm setting up a P.O. Box for the HOA so that I don't use my personal address on any correspondence.

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By SandraC1 on 01/08/2007 7:03 AM

Ron, we would like to fine the homeowner but the developer did not include any fines for any violations in the HOA documents. How do we go about adding these? Does anyone have a general list of fines for violations?

Does the letter that I send need to be sent certified mail? Also, since we haven't hired a property mgt. company yet, I'm setting up a P.O. Box for the HOA so that I don't use my personal address on any correspondence.

If your HOA does not have an attorney, you should find one ASAP. One who specializes in HOAs. Ask him or her about the fines or avenues of enforcement available to you. It's a normal expense of running an HOA.

As I understand it from a former board member, our CC&Rs to not provide for direct fines but they do allow the HOA to have an attorney send a letter demanding compliance and charge "reasonable legal fees". These fees go to the attorney for his or her services and are billed to the offender by the attorney. Not a lot of people are going to refuse to pay a bill sent by an attorney.

I would send the letter by certified mail. Cost is not excessive and you have proof that the offender received it.

Ron
SC

RogerB (Colorado)
Posts: 5,067

Posted:

I strongly disagree with fining, threatening, or hiring an attorney at this time. Based on my experience any of these actions will definitely create an advisarial situation. I find that even a nicely worded informative notice will cause most receipients of react negatively. So IMO to take such drastic actions in a first notice can be very harmful towards achieving desired results. Remember, these are your neighbors with whom you want to maintain good relationships.

DwightT (Idaho)
Posts: 664

Posted:

Posted By RonaldW on 01/08/2007 7:29 AM

If your HOA does not have an attorney, you should find one ASAP. One who specializes in HOAs. Ask him or her about the fines or avenues of enforcement available to you. It's a normal expense of running an HOA.

As I understand it from a former board member, our CC&Rs to not provide for direct fines but they do allow the HOA to have an attorney send a letter demanding compliance and charge "reasonable legal fees". These fees go to the attorney for his or her services and are billed to the offender by the attorney. Not a lot of people are going to refuse to pay a bill sent by an attorney.

I would send the letter by certified mail. Cost is not excessive and you have proof that the offender received it.

How do you handle it when a homeowner refuses delivery of certified mail? We've had two instances of this in the past year. As it happens both issues have been resolved anyway: one renter moved out and took his trailer with him, the other homeowner installed a fence to screen his dog run. But it leaves me wondering where to go the next time this happens. With the renter, we tried to have the owner served, but the address on record is just a P.O. box for a buisness, and the process-server was having problems tracking him down.

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By RogerB on 01/08/2007 8:14 AM

I strongly disagree with fining, threatening, or hiring an attorney at this time. Based on my experience any of these actions will definitely create an advisarial situation. I find that even a nicely worded informative notice will cause most receipients of react negatively. So IMO to take such drastic actions in a first notice can be very harmful towards achieving desired results. Remember, these are your neighbors with whom you want to maintain good relationships.

Of course, you are right here. A fine or legal action is the last resort. On the other hand, while you are attempting to settle this informally, other members may copy the violation thinking that it's OK. The offender's attitude when dealing with the board should give an idea of how to proceede and how quickly to do so.

Ron
SC

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By DwightT on 01/08/2007 8:20 AM

How do you handle it when a homeowner refuses delivery of certified mail? ........

Again, your attorney should know how to handle this. Your CC&Rs may only require that a notice be mailed to the last known address on file with the HOA.

For some violations, your CC&Rs may allow you to take action to correct the violation and charge the "reasonable" expense to the property owner. Examples would be keeping junked vehicles on the property, failing to maintain the lawn, etc. You should probably consult your attorney before doing this.

Again this would be a drastic action but in some cases, it may be necessary. Consider the dues paying, CC&R compliant neighbors living next to the violator.

Ron
SC

WilliamT (Arizona)
Posts: 489

Posted:

Dwight, a standard procedure is to mail two letters. One is the certified letter, and the other is the same letter via regular first class mail.

When you do that, it is assumed that the person has received it whether or not they refuse the certified.

It's a typical trick that people think they can use. The believe that by refusing to accept a certified letter that they are presumed to be not-notified. But in fact they are presumed to be notified. You can check with your attorney.

BradP (Kansas)
Posts: 2,640

Posted:

I tend to agree with Roger, at least at this point I think a nicely worded letter outlining the covenants and procedures is the first step. You may want to look at an attorney and all the other stuff on the side, but at this point I don't see a reason to get them involved in this.

GeraldT1 (<Not Specified>)
Posts: 519

Posted:

SandraC1,

Curious why the developer's opinion is involved???

You are correct, this is an important decision. The CC&R's may be all the procedures your HOA has set up at this time. Typically, the ARC (Architectural Review Committee) standards don't get implemented until an ARC committee has been established by the owner controlled board and those rules and regulations get ratified. ARC regulations may be a more relaxed yet specific set of rules that don't contradict the cc&r's but expand upon them with procedural things such as yard art placement, night lighting, flag installation, length of time that holiday decorations can be displayed and where, etc.

I believe the way to go is quietly but with a big stick, in other words, a board letter of notification of the fence installation that is in violation to the cc&r's. Because of this, the fence must be removed. That is the end of the story because until such time as the COMMUNITY amends the cc&r's (not the Board), the Board's hands are tied and the Board must uphold the cc&r's to protect all eligible mortgage holders. It's plain and simple.

As for an attorney, yes, the HOA Board should and must have one. However, the Board should be as educated as possible about the cc&r's, by-laws, state, local, and federal law prior to getting an attorney. Every time you turn an attorney for guidance, it's more money. The more the Board knows, the more prudent they will be.

Best of success!!
GeraldT1
NNJ

SandraC1 (Virginia)
Posts: 6

Posted:

Gerald,
I enlisted the developer's opinion because their representative acted as the HOA President & ARC during construction, and the HOA was just turned over to us last month (December 2006). He approved all exterior modifications until we received the HOA last month; one of which was a wood fence installed during the summer. This wood fence caused such a problem for most homeowners that the developer agreed to replace it at his cost if we decide as a community to disallow wood fences at our mtg. scheduled at the end of this month.
Some Board members think asking the neighbor to remove his fence is too harsh. But, our cc&r's clearly state that the Board has the right to do this. If he doesn't remove the fence, what's the next step? I've already spoken with him regarding the violation, and I don't think he'll take the news well. In other words, this may get ugly!!
Oh, did I add that this neighbor has his home up for sale? Apparently, the fence was installed to overcome some objections from prospective buyers.

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By SandraC1 on 01/08/2007 2:53 PM

.........
Oh, did I add that this neighbor has his home up for sale? Apparently, the fence was installed to overcome some objections from prospective buyers.

Don't allow him to sell the property with the fence or you'll never get it taken down. Get a lien, court order, whatever it takes.

Ron
SC

SandraC1 (Virginia)
Posts: 6

Posted:

Ron,
One of the reasons we are moving so quickly on this is because he is trying to sell his house. The plan is to get a letter out to him w/in the next few days stating the violation & the consequences as a result of the violation. I'm sure he will put up a fight, but we (BOD) need to ensure that everyone follows the rules of the HOA whether someone is planing to leave the neighborhood or not.

I want to thank all of you who took the time to respond to my posting. Your advice has been very helpful.

GeraldT1 (<Not Specified>)
Posts: 519

Posted:

SandraC1,

As I thought. The Developer was the Board and ARC, yours is a new association. If the Developer approved the modification then it is very unreasonable to request the owner remove it. The Developer is going to pay for the fence replacement as long as the community votes to disallow wood fences. That should be the goal.

IMO the Developer does not think for one minute that the community and Board can pull off a vote disallowing wood fences. From my experience the Developer is incorrect.

However, I'd press the Developer to fix it as a show of good faith rather than pit neighbor against neighbor. If that doesn't work, the informal spin I'd put on it to the community is that enough owners have voiced their dissatisfaction regarding wood fences in the community that the Developer will graciously rectify the one and only current wood fence installation if enough owners vote to disallow wood fence installation. The Board and the owner need the support of the community in order to seek an amicable solution. Or something to that effect.

Get an item "Community vote regarding disallowing wood fence installation" on the agenda. If the vote passes to disallow everyone wins, except the Developer of course, it has to pay for the fix.

Best of success!!
GeraldT1
NNJ

RogerB (Colorado)
Posts: 5,067

Posted:

Sandra, I am confused. Did you first say the owner did not get ARC approval and then in this later post doesn't it indicate the fence was approved? If it was approved he is not in violation.

Posted By SandraC1 on 01/08/2007 2:53 PM
I enlisted the developer's opinion because their representative acted as the HOA President & ARC during construction, and the HOA was just turned over to us last month (December 2006). He approved all exterior modifications until we received the HOA last month; one of which was a wood fence installed during the summer.

SandraC1 (Virginia)
Posts: 6

Posted:

Gerald,

There are actually (2) wood fences in the neighborhood. The 1st fence was approved by the developer, and this is the fence that the developer has agreed to replace at his expense if we, as a community, vote to disallow wood fences. The 2nd fence belongs to the neighbor who is in violation because he did not seek approval for his fence prior to installing it. So, we have (2) different issues to deal with.

Actually, the developer is working very closely with the BOD to draft the amendment to the CC&Rs, and he is also going to attend our meeting. Hopefully, this fence issue will be rectified soon.

Sandra

GeraldT1 (<Not Specified>)
Posts: 519

Posted:

SandraC1,

Any more details you'd like to provide? : )

The 1st owner installed the fence and was granted approval by the Developer.

The 2nd owner installed the fence and was not granted approval because the procedure of seeking it was not followed.

IF...the 2nd owner's fence installation is similar to and or better than the 1st owner, why would the HOA not grant approval?

Sounds like the 2nd owner is guilty of nothing more than not seeking approval. This happens all the time, especially in new associations. The HOA is going to have to be flexible on this.

If you are now going to push for a vote banning all wood fences than I'd advise you attempt to get the developer to kick in to pay for the second owner's fence as well.

Best of success!!
GeraldT1
NNJ

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By GeraldT1 on 01/09/2007 1:24 PM
Sounds like the 2nd owner is guilty of nothing more than not seeking approval. This happens all the time, especially in new associations. ........

Isn't that enough? What is the point in requiring approval if you don't really mean it?

Ron
SC

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