Abandonment / Selective Enforcement

I live in a community in Tennessee, there are 21 lots in the community, 18 of the lots have homes built. Of the 18 improved lots there are 12 with fences that are visible from the road.

Our covenant regarding fences states:

"No fences shall be constructed with the exception of ones built of like kind to the fence built along XXXXX Road by the developer, unless approved by the developer and/ or his assigns. Other fences may be permitted in wooded or non visible areas upon approval of the developer or his assign.”

Of the 12 fences installed, 1 (yes one) fence is compliant it is a four rail wooden fence . 2 others asked for permission to put in fences that don't comply 1 to enclose a pool(white vinyl privacy) area and 1 because the owner wanted a fence that was better match for his house(white vinyl three rail). both were approved.
8 of the fences were installed without consulting with the HOA and are non compliant fences The type ranges from chain link to woven wire and are used to keep dogs or keep wildlife out of gardens. These fences
have been installed over the last 15 years.
The HOA Board has never taken any action against any of the non compliant fences.

About a month ago another fence was installed. It's a six foot cedar Privacy / stockade style fence.

The HOA Board has told the homeowner the fence must be removed. At the HOA meeting yesterday the homeowner stated the covenant had been abandoned and is unenforceable, and that the action taken by the Board constitutes selective enforcement. He refused to remove the fence.

I'm looking for input from folks that have been in this situation and what the solution was.

Darryl,

If I understand what you wrote, you have 18 homes on 21 lots. Of the 18 homes, 12 have fences and 11 of those 12 do not comply with the original standard set by the builder but have been in existence without objection from the association for up to 15 years. Now you have a 13th fence and the 12th one out of compliance.

With 2/3 of the homes out of compliance and a history of non-enforcement by the association, you would have a hard time convincing a judge that the property owners as a whole wish to enforce the fence rule. On top of that, the board themselves approved two of those non-compliant fences.

If I was the guy who put up the latest fence, I would be circulating an amendment to the CC&R's to remove the restriction on fences. I would know where to collect the first 12 signatures. How many more would I need?

Forget about the non-compliant fences. They are a lost cause.

If all the homeowners like fences, vote to change the CCRs and allow fences. Its your HOA, you dont have to live by ancient CCR's if no one agrees with them. But you do have to follow a legal process to have them changed.

Assuming the offending party is correct. Is the abandonment / selective enforcement claim one that is universal or does it vary by state

I assume by benign neglect,
you are suggesting the BOD ignore the violation ?

Melissa

The BOD has instructed one homeowner to either make his fence compliant or remove it. The BOD has stated the other non compliant fences can remain. The homeowner that the BOD has singled out is claiming the covenant regarding fences has been abandoned, or the BOD is guilty of selective enforcement. The intention of the homeowner is to keep the fence.
The BOD has tabled the action for 45 days and asked for feedback from HOA members. That is why I am posting here.

Oh, unless any of the fences violate local building ordinances, then you might be able to sic the Building Dept on the offenders.

The fence in question is different in material than the other offending fences (see original post) it is a cedar privacy/stockade fence. while the other non approved fences are different types of wire (chainlink woven wire etc...) The board did approve a white vinyl privacy fence, and a white vinyl three rail fence, the covenant does allow for the board to make exceptions regarding fences.

The question is

A, Has the board abandoned the covenant by not enforcing the rule since 1994 ?

B. If so how do we move forward regarding fences as a community ?

C. If the board insists on this one fence being removed are they guilty of selective enforcement ?

D, If they are guilty of selective enforcement what is the potential consequence for the board ?

This is important to me, these people (all of them) are my neighbors and I want to do what is right concerning this issue. I see both sides of the disagreement. Both sides appear to be steadfast in their position, and I am looking for feedback from folks that have been involved in similar incidents.

Darryl,

If the Association approved the fences, per the section you cited, the approved fences would be in compliance.

If the other fences were installed without approval, ignore the style of the fence. Stick to the simple issue that prior approval was required and was not sought or granted.

Larry the covenants are a mess,that's part of the issue. I believe the HOA is in control as the Developer is long gone and THe HOA has taken action on an unrelated issue that ended up in the courts.

The HOA is only requiring one of the offending homeowners to remove his fence. The homeowners position is that the covenant regarding fences has never been enforced. He is correct regarding enforcement until this incident the HOA has never taken action on a fence issue (15 years). As a result the homeowner in question has stated the covenant is void (abandoned) and cannot be enforced .
He has also stated if the covenant is enforced againsnt him and no one else it is selective enforcement.

Melissa the offending homeowner did not ask permission.He has openly stated as much. That is not in question. There are ten other non compliant fences that did not ask permission and installed fences as well. At yesterdays meeting the BOD said they will allow those ten fences, but the most recent fence must be removed.

Is that selective enforcement ?

There is typically language in the documents that specify that failure to enforce a covenant now does not prevent enforcement later. Example of such language:

"Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."


Well, that is the violation.


Sounds like there are others guilty of the same violation.


Oops. An Association must, I say again must enforce a covenant equally.

They can chose not to enforce a covenant against anyone. However, if they do chose to enforce, they must enforce equally.


Sounds like it to me.

Here is more info on that issue:

Avoiding HOA Rule Selective Enforcement Claims 2012 CAI Article
PAYNE v. CUDJOE GARDENS PROPERTY OWNERS ASS'N, INC. Case involving Selective Enforcement
COVENANT ENFORCEMENT-SELECTIVE ENFORCEMENT CAN BE A KILLER 2004 article by Taylor & Carls, P.A
Selective Enforcement Challenge for Homeowner Associations 2012 article on HOA Management Blog


I think he is correct.
Will he challenge it in court? - that's an unknown
Will the Board take the issue to court? - that too is an unknown
What will happen in court? - Also an unknown

Sounds to me how an impartial person would see it.

The Board has sent a final notice threatening legal action against the homeowner. I feel the Board is making a mistake. Based on what little information I've been able to find, and the feedback I've received here, the homeowner's claims of abandonment / selective enforcement are accurate.
I fear the HOA is about to learn an expensive lesson !

Update: On February 2nd. the HOA agreed to suspend action on the fence for 30 to 45 days , and meet with the homeowner to try and work out a compromise. This agreement was made at the HOA meeting on February 2nd. On February 26 the offending homeowner received a letter from the HOA stating that he must submit a written compromise that is accepted by the HOA or immediate action would be taken by the HOA. In speaking with the homeowner he said he felt that the HOA had breeched the prior agreement and had a lawyer send a letter to the HOA reaffirming his position that in his opinion, the covenant regarding fences had been abandoned. He also said he would screen the fence with landscaping . After thirty days the HOA had not responded. The homeowner has planted at least 100 small trees bushes etc.. The fence is still visible. Earlier this week the homeowner ( 5 months after the homeowner responded to the HOA) received a summons from the HOA's attorney demanding that the fence be removed, that he pay attorneys fees and court costs.
I was at the February 2nd meeting and the HOA did agree to table and meet with the homeowner in 30 to 45 days. If what the homeowner said about receiving a letter on February 26th. is true, then the HOA did not honor that agreement . Further he says that they never replied to the letter his attorney sent in response to the HOA's letter. The attorneys letter requested a copy of the meeting minutes which were never sent.
Today I spoke with the homeowner and he said he is considering filing a counter suit against the HOA to cover his legal expenses and court costs. He said that he has documented all communications and actually recorded the HOA meeting on February 2nd when the agreement was made to table and meet with the board in 30 to 45 days.
At this point I'm a concerned homeowner. If he wins I think this could mean a significant increase in my HOA fees.
I'm not a lawyer but it seems to me that our HOA has at best a slim chance of winning this.
I'm looking for a solution to this issue before it goes to court, any suggestions ?

Well it sounds like the person is counter-suing for his legal costs. Which they are entitled to try to do. The court can only make someone "Whole". So he would have to prove that he would not have suffered the expense of hiring the lawyer if the HOA had not acted so grievancily.

In a way that may be good news as not suing for all the expenses that could be associated with this case. The HOA should have never brought the case most likely, but now that they have, need to win their case. Not knowing how much money the HOA is out on this issue, it's hard to tell what the court would award. It may force the owner to remove fence or the HOA has to pay their own court cost plus the defendants as a worst case. (Hence why I always say "suing your HOA is suing yourself and your neighbors...It will raise your dues or make for a special assessment. Sue when prepared to take that on)

In my opinion, the HOA requested a compromise from the homeowner and scheduled a time frame for response. The homeowner and their attorney may have the opinion that the covenant is unenforceable so their baseline opinion would be that the fence remains. But they offered a compromise - to plant trees and shrubbery around the fence. The HOA then chose to renege on their agreed time table and never responded only later to involve their attorney and proceed with legal action. It sounds as if the HOA forfeited their right to enforce the covenant by implicitly complying with the homeowner's compromise.

This is an old post but pertinent to our association right now. Our association has openly and willingly violated our covenants for 25 years by allowing 3 rail post and dowel fences at the property line as well as other improvements. The association in their own words estimates about 25% of the 246 units have such fencing (over 60 units) and near 90% have other improvements in the setbacks (both approved and I approved). The allowance of these fences, landscaping and a few other items are at the property lines were also specified in the ARC documents and the rules of the association.

The covenant states that no improvements shall be allowed in the setbacks other than a single driveway to the residence.

Fast forward- there is a lawsuit related to that covenant for a specific improvement which had not been approvable in the community for 25 years. The association however brought up all the other improvements that the HAVE (albeit against the covenant) been approved in the setbacks as a defense to the allowance of this particular improvement (a secondary driveway) . Once they openly admitted it in legal court documents I think they realized they shot themselves in the foot and then decided they now needed to do something about it- mind you this lawsuit has sat in the courts for 4 years now and the HOA decided to enforce the covenant about 3.5 years into the lawsuit after continuing to approve fences and other items in the setbacks the entire 3.5 years of the lawsuit. That portion of our suit has been dropped and there were no rulings or penalties to the association.

We were building a barn with the plan to get horses after 7 years of living here. After the barn was complete we submitted for our fencing- same specs as the other 25% of the owners. The ARC denied our request and reasoned that at a board meeting just three days prior to our request, the BOD changed the rules and have now decided to enforce the covenant as written and as of that day, with zero written notice to the community (which is in violation of our policy, Bylaws, AND Declaration) fences will no longer be allowed. They have sort of enforced equally since then (the last year) however I know of at least 3 others who put up their fencing in the setbacks without approval. Ultimately my attorney advised us to install our fence due to latches and waiver, and because our horses had gotten out a couple of times which is super scary. So, we built our fence, which they knew about because the president, and secretary live right next to us. There was no notice, no cease and desist, nothing. It took over a month to build the fence and about 3 months later we receive a violation and threat for fines and/or legal action if the 1300 feet of fencing is not removed. Lmao. At this point we are still in the violation process so there has been no action-

Ironically, the BOD has now decided to try to amend the covenants to allow all of these previously allowed improvements. Now we are in the active stages of a community vote to allow these items to include the post and dowel fencing.

There are many people now who desire these improvements and are waiting for the outcome of these votes. If one or all of these votes fail, I am wondering what this community feels would be appropriate? Would a judge still likely declare an abandonment of this covenant due to the history of approvals over such a long period of time that a supermajority of the community has? That the association and owners have effectively changed this covenant by lack of enforcement? Does the HOA have any standing to now enforce this covenant, albeit without proper notice to residents regardless of the outcome of this vote? If the amendments pass then all is well, but if not does that truly give the association power to now deny all the same improvements the majority of the owners already have?