Privacy Fences

Started by PaulM18 • 10 replies • 2350 views

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PaulM18 (Virginia)
Posts: 46

Posted:

Greetings everyone,

I'm in a newish community of 71 single family homes (first home sold in 2007... but we still have 10 lots unsold)

Or CC&R's restrict fences to be "4 to 6 feet in hieght and made of black aluminum"... Thats it...

At the time it was understood and relayed to anyone requesting fences that this meant a 'wrought iron' type fence... But it never stated that...

We recently had an owner approved for a fence that is a privacy fence made of black aluminum because it was withing the guidelines... This was before the HOA was turned over to the owners and was made by an employee of the developer (not a board member). The developer has since said that he would never have approved it and is supposedly upset with his employee... but regardless.. it was approved.

The current board (Which I'm on) is unanamously in support of this owner since there was no abiguity in the request... they included pictures and diagrams etc... they even followed up with the Management Company after they were hired to confirm thier approval was still good... So they did everything right.

But now we have some upset folks... There are people on both sides of the arguement and its probably 50/50 on support it / hate it...

Before any more privacy fences are approved I want to put it to a referandum of the community to decide if we allow any future privacy fences or not... But the people in favor of it are of the opinion that precident has been set by allowing the first one to stay up.

I am personally opposed to privacy fences... I think they fundamentally change the character of the community... In some communities they are great... but feel that ours they would not... We have almost 70 acres of land surround out community with trees and large open areas... I feel that this great connection with nature around us will be severely impacted... All of the trees and open area's are what drew me to the community... and based on what I was told about fences when I signed my construction agreement I new my view would remain for as long as I lived there.

Does this sound like the best course of action? Let the membership decide by a simple yes no vote to permit privacy fences or not (majority rule)...

This wouldn't be a CC&R Change so it could be changed again very easily so its not a long term solution... but if 2/3rd voted one way or the other I think we should include it in the CC&R update we plan on doing.

Thanks for any input you all can provide!

Paul

BradP (Kansas)
Posts: 2,640

Posted:

No and here is the reason why, if your CC&R's permit black aluminum privacy fences then the only way to stop them is to change the covenant and you would have to follow your documents. Your community has decided black aluminum means wrought iron but if I bought a home having read your documents and requested a black aluminum fence then I don't see anyway you could deny it. While you may be opposed to privacy fences your documents permit and not allowing them could result in lawsuits your HOA would lose.

PaulM18 (Virginia)
Posts: 46

Posted:

Ok.. Went and grabbed what the exact words are from the Declaration:

"No fence shall be erected, altered or moved onto any lot in this subdivision until a site plan and the specifications for such fence has been approved by the Declarant which provision is hereinafter made. Declarant shall have the right to grant or withhold approval based on in part upon quality, type, and appearance of external materials, location of the fence upon the lot and harmony of the external design and colors with other houses in the subdivision. Fences shall be pre-manufactured black aluminum 4 feet to 6 feet in height on every lot in the subdivision. Each lot owner should obtain from the Declarant the design and material requirements and written approval from the Declarant before commence of the construction of any fence on any lot."

As the the Declarant has transferred control very recently (about a month) we have not had a chance to update our Declaration ... But everyone we've talked to (lawyer, management company, this board) pretty much confirms that the 'declarant' powers in the Declaration transfers to the association...

Why wouldn't we be able to establish guidelines on the type of fence which would preclude privacy fences based on "design and material requirements"?

Paul

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Paul

I am a bit confused so help me out.

1. To me a wrought iron fence is black, vertical rails, about 1in square rails, and rails about 6-8 inches apart be they wrought iron or aluminum. It is more a style then a type of metal be the rails wrought iron or aluminum.

2. A privacy fence is one I cannot see thru as in it is solid, thus the privacy. They are made of wood, vinyl, etc. but I have never seen a metal privacy fence.

Sorry for my confusion.

PaulM18 (Virginia)
Posts: 46

Posted:

John,

Here is a picture of the fence material

http://www.fence-depot.com/site/wp-content/uploads/2009/09/privacyfar.jpg

I had never heard of a black aluminum privacy fence either...

Paul

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Paul

Thanks. Got the link. Looked at it.

While one could argue it is black metal and the proper height, if the intent/history (as per other fences already installed) is/was the wrought iron fence type (vertical rail type) then I personally would have issues with the type fence shown in the link.

If the intent/history is as I understand it, then this type/style/design fence is a radical departure and one I might well be upset with. Seems to me one hung their hat on material type, versus the style/intent if they approved it

Based on the post of your Bylaws, to me this is an example of something a BOD could easily clarify/specify (vertical metal rail type) in their Rules and Regulations and well be within their guidelines to do so.

All in all, that fence is ugly as in UGLY........LOL

BrianB (California)
Posts: 2,820

Posted:

Just goes to show, one man's trash...

I don't find the fence ugly, but, my opinion and $5 will barely get you coffee at Starbucks. I can think of four or five difference fence styles I find uglier.

As it stands, I think the wording is horrible in the CC&R's, UNLESS, this is exactly what type of fence is desired. A wrought iron fence is just NOT an aluminum fence, no way shape or form. I think a big clue is the word IRON, but that's just me.

So, with the wording of the CC&Rs to allow ONLY aluminum fences, I don't see how you can change that without using the process to properly change the CC&R's. As for the leeway allowed to your board, they have some, but only up to the big line in the sand, an aluminum fence. So, they could allow wider slats, narrow slats, colors, perhaps lattice, but the rules say aluminum, so until you change the big rules, aluminum it should be.

PaulM18 (Virginia)
Posts: 46

Posted:

Well.. most 'wrought iron' fences are really 'Wrought Iron Style" fences but are actually aluminum... you are hard pressed to find actual IRON fences anymore.

And ugly or attractive... its a complete departure in the nature of the existing fences... all of the previous 20 or so fences in our phase of the neighborhood and all 20 or so fences in the first phase of the neighborhood are the 'wrought iron style' aluminum fences... including the Planned Development office park and apartment complex next to us.

While I am personally opposed (very strongly) to the shift from the wrought iron style aluminum fences to this style I still figure we should permit the membership to make the call on if they want to allow this specific style of aluminum fences in the future and simply adopt that decision as a fencing guideline for the 'style' fence we want that meets the CC&R material requirement.

I know we have several people that want to completely change it to allow any material and style... and others that would like to change to only 5' tall uniform style of fence (i.e. a specific design) like our mailboxes are required to be (our mailboxes have to be: Salisbury Industries model 4850 with model 4825 post ... or a brick/stone mailbox)

I know some communities prohibit fences altogether and others only allow the white vinyl privacy fences...

What I don't want is the 3 member board to simple make a rule... I'd like to get a larger consensus. I know the reaction to this fence has caused a lot of stress to the owners of the home in question... I feel our complete lack of guidelines that the Developer followed is the source of our problem... if it had been provided in any document the STYLE of fence vice the material this would never have been an issue.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Paul

The issue is when you dictate a model/manufacturer it can be to specific especially when that company goes out of business/no longer available. Thus you create "an opening" for one that wants to do different like OK well so and so is no longer in business so that now "allows me" (they are always the allows me type) to do most anything they desire.

I say the Rules and Regulations are well within the power of the BOD and can be used/are meant to "clarify" such as use pics/brochures, etc. to set a "style" verus dictate a specific product.

Like it or not, to me that metal privacy fence is ugly and well outside "prior acceptable" neighborhood standards.

Just my opinion.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Paul:

The Board could do a Resolution clarifying that the fences are to be 'wrought iron style' matching style of other current wrought iron fencing. This will at least cover the issue for any near future approvals, until or if decide different.

Then if desired distribute a questionnaire to the owners to see what the general consensus is for future fences. However, if you change to different fences you should amend the CCR’s and which will take majority of owners.

Also, you might consider sending a letter to the individual who had developer (employee) approval for the non-matching fence that in the future, when or if the fence is replaced, it must meet the then current CCR guidelines. The copy of the letter would then be in the HOA files for future BOD to know of the circumstances and that the owner is on notice regarding future replacement.

BrianB (California)
Posts: 2,820

Posted:

Sorry, I had no idea that wrought iron was being stamped out of aluminum back east.

I grew up (and still live) where wrought iron still means iron, forged, cast and done with welders and all.

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