Homeowner with Non Compliant fencing- refusing to speak to the Board

Started by HeatherC6 • 8 replies • 3176 views

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HeatherC6 (Washington)
Posts: 19

Posted:

I am the President of an HOA(200 homes)we sent out notices on December 15th to 10 homeowners who had fences that did not comply with the ARR( all of these fences were built over the past 2 years, but the Board did not take action). One Homeowner sent us a reply letter, I then tried to contact her via email/left a phone message/and stopped by her house to give her my contact information, so that we could talk- she answered the door but would not speak to me. When I returned home she had sent me an email- told me not to contact her in any way, but that the Board needed to reply to her letter via USPS.

I contacted the other Board members and we sent her a reply- basically reiterating that she had built a fence that did not comply with the standards of the HOA and that she had built her fence without approval- so I copied the relevant sections of our rules in the letter as well.

She has since canvassed our neighborhood to speak with all the other owners' who have non-compliant fencing and ask them to come to the Annual Meeting to support her, because she believes the HOA is trying to tear her fence down.

How can we get her to communicate with the Board, so that we can solve the issue reasonably. Our Annual Meeting is in February and I would love to speak with her prior to that meeting, as I don't feel that discussing her fence in the annual meeting is appropriate, but I also do not want to get into legal trouble by contacting her, since her email was quite explicit.

Anyone else encountered a homeowner who will not talk to them? If she brings it up in the Annual Meeting- can we discuss it publicly? Do we need to seek legal counsel, as to how we should address the situation at the annual meeting, if we cannot get her to speak to the Board prior to that time?

FredO (California)
Posts: 198

Posted:

Heather,

You say the fences in question were built over the last two years. Did these fences (or your governing documents - like the ARC guidelines) require prior Board or ARC approval before building? Do your documents require a completion notice (and ARC inspection) after construction is finished?

I ask, because my HOA requires these things which helps avoid these situations. This is also where variances come in. How "bad" are the fence violations? Is this one lady's fence close enough to the guidelines to be able to issue her a variance that might solve the problem?

Also, I have to wonder if there is a "Doctrine of Laches" kind of law in the state of Washington. Here in Calif, if the board doesn't take action about something that violates the CC&R's then the Doctrine of Laches may apply and the HOA will have no word on the issue.

We have had a few owners who made minor (yet outside the ARC guidelines) modifications and our board was too slow to act. When they finally did act to have the item removed or brought into compliance, that owner brought up the Doctrine of Laches. The board was stuck between a rock and a hard place and could not legally do anything about the modifications.

You might have to look into this aspect with regards to the fences in question. One more question, do the fences violate city or county building codes (like for height)?

The homeowner may feel that you (the HOA) had your chance to rectify the situation and did nothing. Was the fence built according to plans? If not, then at the time of construction you might have had recourse with the fencing contractor to get it into compliance. However, now after this long period of time, if the fence was not built to spec, the owner would not be able to get the contractor to fix it (warranty type of thing).

If the HOA waited too long, you might have missed your chance to resolve it. Now you may be faced with issuing a variance to resolve the issue.

I am sorry, I just do not know the laws in your state that might apply to this.

My HOA is notoriously slow in making decisions. Yes, they are volunteers and typically meet the one time per month. However, in their slowness may reduce the amount of legal recourse they have available to them for these types of situations. The board is now using this tactic to their advantage. We have a little old lady who has a lawn ornament in her yard. We have had some people complain (past members of the board and ARC committee who are now just making trouble and complaining about everything). The board does not want to issue a variance on the issue and has decided that taking no action is the best action. Then when the doctrine of laches kicks in, they will be able to say they can't do anything about. This way, when the lady moves of passes on, they can have the item removed while not having a variance that is associated to the property forever (for the next owner to use - because variances in our HOA are issued to the address, not the person. So they transfer with ownership)

HeatherC6 (Washington)
Posts: 19

Posted:

The ARR do require Board approval, and they do require a completion notice, neither of these were issued. I have read our state laws regarding HOA's, but have not seen anything about the HOA losing their right to pursue violations if a period of time has passed. The fence does not violate city or county code, but the HOA has received a few complaints regarding this specific fence, it is a solid wood fence, but all the structural supports are on the outside, our ARR require that all structural supports be inside the yard being fenced.

Thank you for your response. I wish that the Board had acted when these fences were built, but since they didn't it has to be handled now. The Board might be willing to issue her a variance, but if she won't speak to us, how can we get anywhere?

FredO (California)
Posts: 198

Posted:

Heather,

Here in our HOA (in Calif) we all have fenced in yards. Our ACC guidelines indicate that fence support structure should be inside your yard if there is no adjoining yard and for adjoining yards the supports of swapped back and forth with the neighbor in an alternating fashion (one panel your side, the next on his side).

Our governing documents also state that the completion notice has to be submitted within 15 days of the completion of construction and the HOA (ACC) has 30 days to sign off on it. After that, our own governing documents state that the failure of the ACC to act then means the construction is automatically accepted.

What we had was a couple of homeowners who followed all the HOA rules and the HOA failed to act for over a year in one case. Then the HOA came back (pretty much like your situation) and decided they were going to enforce. They threatened fines and liens. The owner told them to suck eggs. The board went so far as to hold executive sessions to bring them in. They refused so the board fined them and then went for the lien. When they informed the owner of the lien being taken out, the owner got a lawyer and had him send a strongly worded letter educating the board on the "Doctrine of Laches" and their own governing documents (which said if there is no action, the construction is automatically accepted).

In this case, the owner was right and yet the board continued to harass them with all sorts of violations. Some of the violations were real, but only in a sense that a board member entered onto the owner property to vandalize and manufacture the violation. He caught this on tape and threatened to sue. Settlement was out of court and the issue dropped.

In your case, since the owner has indicated she wants contact via USPS, why not send her a letter seeking a meeting to work out an amicable solution? Indicate in the letter just what you stated here, that you are considering a variance for her and would like to talk.

Getting a letter from you HOA board creates stress in some people. Much like getting a letter from the IRS or having a cop following you in traffic. If your first letter to her was to inform her of a non compliance and that you wanted action taken, then is might be justified in her feelings. In my opinion, send her an kindly worded letter seeking to work out a solution.

What's to lose in this approach?

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Heather,

The previous board's inaction is, indeed, an action. It allowed these fences. Unless the violations and aesthetics are grossly out of line, you might have bigger fish to fry.

But I understand a new board wanting more accountable to and from its dues payers. Tread carefully and you don't really need to speak verbally with anyone as long as registered mail and lawyers exist.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Heather

The homeowner simply wants all correspondence in writing as she is attempting to build a case against the BOD. Not that she can, but simply give it to her in writing.

Hope this helps

FredO (California)
Posts: 198

Posted:

Right... This is one of those situations (my opinion here) where the owner did a thing (the fence) and it was approved at the time. Approved maybe as in, there was no action taken to correct her non-compliance. Now, a couple of years later the HOA is attempting to correct a possible oversight on the HOA's part.

The HOA, it seems, has considered the facts and is maybe looking at issuing a variance. However, I have to think that after the first letter on the issue, the owner may be rightfully a little defensive on the subject and as JohnC has pointed out, may be looking to build a case for her own protection.

How to solve this?

This brings up a question I have experienced in my HOA. Yes, the make up of the board and the Arch Control Committee changes over time as people join these and drop off them. So, the issue we face is that a decision was made once years ago by the ARC and now with new make up, the new committee thinks differently about an issue. The previous committee members are all up in arms and feeling that the new committee is doing something that they have already settled (in their minds).

My opinion is that the Arch guidelines are just that, guidelines. If the new committee is doing something in the spirit of the guidelines and developers vision then so be it. The old committee had made their decision based on their vision of what the HOA should be in their eyes. It is funny to watch them go at it meeting after meeting.

However, I think that as time goes on, things have to change. So even if the old committee rules one way 6 years ago, the new committee is free to go a different way today. As long as both meet the intent of the neighborhood.

Our rules even state that the Arch committee can grant one thing to one owner and the complete opposite to another depending on the situation and all. S, I feel the old committee members just need to roll with the flow...

However, once a decision is made and an owner completes construction, I don't think it is fair or legal to later on go and try to force them to remove it because the new committee has basically outlawed that item.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Fred

As you say:

However, once a decision is made and an owner completes construction, I don't think it is fair or legal to later on go and try to force them to remove it because the new committee has basically outlawed that item.

I agree with you especially when one has all the "documentation" that went along with such, but one of the main issues/complaints/pleads posted on here is "well I was told by someone" which translates to I have no documentation.

FredO (California)
Posts: 198

Posted:

JohnC,

I completely agree with you. I also agree that when an HOA takes no action, that in itself IS an action. That being of tacit approval if nothing else.
I myself, ask for everything in writing just because the education gained from the school of experience has proven that this is the right way to go.

In the OP's situation, I thin the HOA is more or less painted itself into a corner and needs to issue a variance and move on, lesson learned. Unfortunately, based on the facts given, it appears to me that the HOA had approved of his ladies fence design by not being on top of things at the time they had a voice (or control).

One thing however, the "I was told by someone" defense can also be legal as verbal contracts are legal in most states. Again, how does one document a verbal contract? There are many ways that I know of (and use).

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