New HOA expects existing fencing changed

1) Did you receive written approval for the fence?

If you did, provide the approval along with a letter specifying that you will comply at when the fence needs replacing.

If you did not, you are likely in violation as it's typical to require approval before installing a fence.

2) Management companies work for the Board. Any change in policy is done with the approval of the Board. Therefore, your issue is with your Board of Directors and not the Management company.

The fence was part of the property when we purchased the house. I looked up the covenents, and they were written in 2003. Evidently, with the new management, they are taking a closer look at things that the previous management company ignored.

I am asking.

When one buys an existing unit/home in an association does not the association have to agree/not stop the purchase (right of first refusal and all), thus if the association says nothing to the buyer are they not saying the unit/home meets all the association's requirements as it is?

I assume if the prior owner (seller) had been notified that corrections needed to be made and they failed to notify the purchaser (buyer) that there were "issues", the buyer would have recourse to the seller.

I can see (and agree with) the association "coming back" on an existing owner, but not on a new owner unless the new owner was notified that some "corrections" needed to be made.

In the case as stated by the OP, I do not see it as his issue. The management company is maybe not overly zealous on violaions, but it does not seem to have its facts straight.

Hate this no edit feature.

The association is not usually a party to the sales transaction. Under most CC&R's the association has no power to waive the restrictions so even if the association knew of violations it has no duty to inform the purchaser (who is not even a member until after the deal closes) unless state law says otherwise.

If the buyer had gone to the association before purchasing and asked if the property was in compliance with the covenants and the association assured him that it was, the buyer might have some claim against the association. Even if that had happened in this case, if the fence does not comply with the restrictions its still gotta go.

GA has a 2 year statute of limitations from the date the violation occurred, not when it was discovered.

Statute of Limitations: The Georgia statute of limitations for a covenant enforcement action on a non-repeating violation is generally two years. This means an association has two years from the date a violation first occurs to bring suit or it loses its authority to enforce against the violation. This defense may be asserted if the violation occurred more than two years before the lawsuit or enforcement action.

I do not know about Georgia but in my state the statute of limitations does not begin to run until a party knows he has a cause of action. Note that this is a defense to an action and not a bar to bringing an action against you. You could spend far more to defend yourself (and even lose) that it would cost to just fix the fence.

I would not place too much reliance on that attorney's website. He may be right on the money or he may be dead wrong. He cites no statutes or case law to support his opinion. Courts rule on the basis of law and not on what an attorney posts on the internet.

I'm writing on this topic because one reply quoted a GA law dealing with a 2 year period for the board to enforce action on a violation.

Here's our situation: An owner planted gardens in the front & rear of her unit after receiving verbal approval from the Grounds Chair. These healthy plants have been in the ground for four years. Our board recently sent all owners a letter saying that they have plans for the common areas and that even though plantings may have been approved by a previous board, they may not now comport with the current board's standards. They further said that every time a board changes, owners would have to resubmit their existing landscaping plan for re-approval. They imposed a deadline for owners to remove all of their plantings on common areas.

Two years ago the association's attorney advised the then board of the two year statute of limitations mentioned above with the reference number 9-3-29. The same lawyer has now advised the board that since no lawsuit had been filed against the offending party, the GA statute does not apply. Based on the lawyer's current opinion, the board recently had all of the owner's plants uprooted and thrown away.

I noticed that the above reference to the 2 years statute says "lawsuit or enforcement action". It should be said that we have been given no landscaping standards to follow. The current board is latching on to the attorney's statement that the board has sole responsibility for the common areas and as such were within their rights in removing any owner plantings from the common area.

My question is does anyone know if the GA statute 9-3-29 applies only when a lawsuit is involved? This seems wrong since no lawsuit would even be filed now, four years after the fact. The board would lose the case. If the statute governs board actions AND lawsuits then it seems that the lawyer's current thinking is wrong. What say you?

Many thanks for your help.

Look to the CC&R's from when the home was built and when you suspect the fence was erected, you definitely have a variance in place. taking down the fence would end your
variance.. Contact the previous managing company when you closed on your home. If the previous BOD took no action, I see no reason why the MC would overstep the BOD.