Is a Garden Trellis a Fence?

Here is a simple (maybe) question:

Recently I put up a small garden trellis on the side of my house. It is maybe 3'x5' (maybe a little bigger).

I put it up to grow some vining plants and to also to hide my compost bin and potting materials from street view. It is only a couple feet from my raised garden. The Association just sent me a letter saying they sent me a previous violation notice to take down my fence and that they have turned my case over to their attorney.

The thing is I had taken down my trellis on the day that their "second" notice was postmarked (I had the trellis tied up to see how it looked before completing it and planting my plants). I received the notice in the mail today.

They included a copy of the original notice which stated to contact them within 15 days to let them know of my plans, or if the violation were to no longer exist, to ignore their letter. While it was a couple days over the 15 day mark, the violation no longer exists because I took it down before they contacted me.

One, if I never received a prior notice, and it was severe enough a violation to send me to an attorney, shouldn't they have sent me the complaint via certified mail so that I would have gotten it, and two, is a garden trellis a fence?

Kevin,

Since you have taken the trellis down, there shouldn't be an issue. Inform them that you don't recall receiving the first notice and that the trellis was removed prior to receiving the second notice was received, you removed the trellis. Add that had someone stopped by or if a hearing is held before the (Board/Committee) prior to issues being turned over for legal action that expenses on both sides can be minimized. Send the letter certified to the attorney and a copy to all board members.

On a side note: If your Association requires prior approval for any outside changes (most do and that requirement is within the CC&Rs), then even putting the trellis up for a trial period was a violation of the covenants. Therefore, I would recommend that you verify what your governing documents specify.

As for what can be considered a fence, typically a fence is any type of barrier used to enclose or protect something. This could be done with plants (hedge, trees, etc.) or man made structures. As Janet said, the trellis could have been considered a fence by the Association (and apparently was).

Kevin,

OK, there is no ACC.
When there is no committee to grant prior approval, that responsibility would be the Boards.

Even if there is no active committee to approve the change, if your governing documents require prior approval, you need to submit the request to the Association.

Since the board had previously asked about drafting stricter rules, you may want to volunteer to be on that committee. This way you will be able to interject ideas and keep things from going overboard.

Tim

Woops. Didn't mean to post the same thing.

As for the documents, there is no covenant requiring prior approval. The covenant they cite says there can be no wall or fence maintained on any part of the lot of the property.

Nothing. The CC&Rs state nothing about changes or alterations to the property. The Rules and Regulations only outline what will happen in a delinquency of assessment (which they do not abide by), not violations of covenants.

There is one provision entitled Enforcement that states the following:

If the Owner or Owners of Lots within the Property, or any other person or persons or any of them or any of the heirs, personal representatives, successors or assigns, shall violate or attempt to violate any Covenants and Restrictions contained herein, it shall be lawful for any other person or persons owning Real Property situated within the Property or for the Developer to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate such Covenants and either to prevent him from doing so or to recover damages for such violation.

The only thing I would consider is that the original covenants never designated the HOA as the successor. There were several documents going back to the 70s but the neighborhood changed hands from developer to developer several times. Eventually there were another entity that came into existence after the C&Rs were drafted establishing a voluntary membership clubhouse not tied to the C&Rs (separate from the neighborhood). It seems that that entity took it upon itself to become the HOA of the neighborhood after the develop left even though there was no document stating they had the authority to act as the enforcer, that is until 2002 when the HOA created a Joinder and Consent form granting them authority over every property and had 50% of the homeowners sign it. That J&C also deemed all future residents and continuing members to become mandatory from that point on.

Another interesting fact is that the HOA never filed any forms in accordance with the MRTA act, which from my understanding would have had the C&Rs expire after 30 years from their inception, which is a few years gone.