Covenant violations

There is a resident in our neighborhood who recently received a letter regarding his fence being in violation of the covenants because it does not start on the back corner of the house. The fence was approved and constructed almost a year ago. I do believe the fence comes to the front half of the house on the side. Two neighbors near him also have the same violations, their fences come half way up the side not the back corner and they did not receive demand letters. One of the offenders now sits on the ACC and is spear heading these letters and has stated his personal fence is fine. One board member recently stated the reason for the letter was because a neighbor wants one just like the resident who got the letter, but they can't deny him until the fence in question is remedied. The board does not want the resident to build this fence. Now keep in mind the letter was in regard to location not materials. Can an HOA demand remedy from one homeowner but not demand the same from the other homeowners who have the same violation?

Janna

Were the homeowners in control when the original fence(s) were erected. If the declarant was in control and gave permission, it stands.

I wanted to add the covenants does address oddly shaped lots where having the fence at the back corner of the house is physically impossible. It does not state it can be forward to align with another fence. The other two fences actually have the type of lots that would allow for adherence to the covenants, but one chose to put his fence their so he can have more back yard or so I was told.

To the best of my knowledge after consulting with past ACC members they all received approval. My role in this is get information from people with similar experiences who have either sat on boards or are currently on one. Residents are coming to me with these questions and concerns and asking me and another individual to sit on the board and change things. I understand the board may have every right to suddenly take a strong stance, however, just because they can doesn't mean they should or at least have done it differently. Many residents are angry looking for answers and the board isn't giving any. The covenants hasn't been updated since the builder wrote it 9 years ago. All residents understand they signed a covenants, but like I said they are using it as a sword and weapon not a tool to build a better community.

Here is a novel idea for dealing with all the fence-and-shed complaints. Most CC&R's contain a provision similar to the one below:

This Declaration may be enforced by the Declarant, by any Owner or lessee of any Parcel, by the holder of a Bona Fide First Mortgage on any Parcel, by the Association, or any one or more of said persons acting jointly.

The HOA should adopt policy similar to:

The association has a fiduciary duty to maintain, improve, and regulate the use of the common areas that it owns.

The Association does not own the individual homes and/or lots of its members and has no fiduciary duty to maintain, improve, or regulate the use of property that it does not own.

The CC&R's neither mandate their enforcement by the Association nor does that document make enforcement exclusive to the Association.

The CC&R's authorize members of the association to bring an action against other members to enforce the provisions of that document.

Therefore, the association shall no longer enforce or attempt to enforce deed restrictions on property not owned by the Association which members may enforce themselves.

This policy is not a waiver of any provision of the CC&R's.

Once homeowners find out what it costs to bring and/or defend an enforcement action, the bickering will end.