Fencing

I have been a member of a great HOA for about 7 years in a very nice area. About a year ago I got a dog and tried the invisible fence to no avail. My CCRs specifically state no fences as well as many other common rules about additions, dog runs, boats and trailers. When I first moved in I submitted a plan to the HOA for a dog run but was denied with no explanation. I had to get rid of the dog.

After watching fences and dog runs as well as many other violations occur I willfully broke the CCRs and built a nice cedar fence. The HOA is now threatening court action.

My question is this. What legal standing do I have regarding the numerous properties (over 50 of 200 houses) with CCR violations, to include fencing, that have had no legal action taken. The excuse is that many (but not all) have been "grandfathered" (with no documentation to that effect). It seems largely discriminatory. I also met with a HOA board member who made mention to the fact that if I faced all my boards out, use galvanized nails, and stained the deck........ (no firm conclusion there but I agreed and completed all of this).

Do I take this to court or suck 4k up and remove the fence?

Kim,

I am not an attorney and I do not work within the legal profession. I am offering advice based on the information in your post, personal experience, etc.:

Issue: You entered into a contract (the CC&Rs) and agreed to comply with certain restrictions and conditions on your property. Per your post you willfully violated the terms of that contract.

Result Your neighbors, via the authority given the Association, desire that you comply with the terms of the contract and are willing to take you to court to enforce the contract.

Your Defense Others are doing it so why can't I?

Question Does that excuse work with a police officer who stopped you for speeding?

Others violating the same covenant you are violating does not nullify your violation. It does indicate that the Board needs to enforce the same covenant on the others as well.

If you went to court claiming selective enforcement the court might do the following:

a) Force you to comply with the terms of the contract and remove the fence.
b) Force you to comply and force the Association to enforce the same covenant on other violators
c) Allow you to keep the fence unless the Association goes after all violators of the same covenant
d) Determine that that specific covenant is unenforceable and allow fences for all members

As you can see, it's a 50/50 chance of winning. The fact that you were aware of the terms of the contract and willfully broke it will likely have some impact probably makes those odds change to 60/40 in favor of the Association.

As for the Boards response about some members being grandfathered: If the no fence rule was not part of the original covenants, then it is possible that some fences are indeed grandfathered in. If you believe that what the Association is telling you is false, you have the right to challenge that response in court. The court may or may not believe that documentation existed and has been lost based on the evidence presented by you, the board and (perhaps) the individual member who's fence is in question.

I would recommend that you negotiate this issue with the Board. Mention that you had talked to the one Director and was of the expectation that they were speaking for the board. Of course, the lack of any written documentation makes this a we say, they say argument.

Good luck.

Tim