CC&R's restrict fences

Our Florida HOA is 25 years old. Our CC&R's restrict fences: No fences other than those initially installed by Declarant...shall be permitted anywhere within the Properties except as approved in writing by the Board, which approval may be arbitrarily withheld.

We have an original homeowner whose fence was approved by the Declarant, U.S. Homes. Now the home is for sale.

My question is: does the approval of the fence end with the sale by the homeowner who received approval or does it go with the land?

Once an approval is granted, the item approved should remain until a new request and approval is granted to change the item.

Since the fence was approved by the builder and your CC&Rs specifically allow such fences, the Board would not have the authority to rescind the approval or demand it's removal without amending the CC&Rs to remove that section.

Actually if you think about it, common sense would indicate that an approval is granted to make an exterior change (fence, door, paint, etc.) to the property. Once this change is made, it becomes part of the property. If the current or future owner wants to change it again (remove the item, change color, etc.) then a new approval must be requested and granted.

Now, there may have been conditional agreements if there was a dispute. For example, if a paint color wasn't properly approved, the Association may have agreed to allow it providing it be changed back when the painting is needed or when the property is sold which ever occurs first. If there is such an agreement, the seller should make it known as part of the disclosure process.

Question, are you on the Board, the seller or the potential/new owner?

If your the seller, make sure that copies of the approval are provided with the house.

If your a potential buyer, ask for a copy of all approvals granted by the builder or Association (good thing for any buyer to do).

If your on the Board, you must comply with your governing documents or face potential legal challenges to your decisions.

Hope this helps,

Tim

Tim, Thank you for your very reasoned response. This was my position as a Board member; however, other Board members disagreed thus prompting me to seek advice from HOATalk.

I'm happy there are other night owls out there!