ARR enforcement

Background: Our HOA, 200+ single family homes was incorporated in 2005, the HOA was controlled by the developer until October 2009 when a Board of Homeowners was elected by the membership.

At the time that the Board was elected there were a few fences that did not meet the standards of the ARR, several more fences were built in 2010 that also did not meet the standards. Our ARR state that No fence can be built without written approval. None of these fences had approval to build.

The Board is trying to get the homeowners to repair their fences to meet the ARR, and of course there is backlash because it took the Board 2 years to send out notices. The reasons for the delay mainly are that the builder contracted a Management company who failed miserably, but the HOA was stuck with them as they had no funds and had to pay that PM, whether they performed the task or not. And the PM company was so bad at handling even the small details that the Board essentially got nothing done until the PM contract was over and they were able to get a PM who helped them. And of course the fact that when you elect 5 homeowners- who have no experience running an HOA it is like molasses in January to figure out what needs to be done, when, and by whom.

So, the fences are unapproved structured, don't meet the HOA's ARR and the homeowners of these homes are threatening a lawsuit, What do you all think is the best step to resolve the situation? Of course the Board does not want a lawsuit and we would like to work with the homeowners, but the Board does not feel that the fences should remain as other owners are complaining that the Board is not enforcing the rules.

Thanks in advance for your knowledge.

Heather,

If this is the same issue you discussed in an earlier thread, and especially since your previous management company appeared to not be as good as they should have been, I would suggest that the Board does the following:

1) Expect approval was received or granted by the builder and simply not forwarded to the new Board when the PM left.
2) allow those fences to stay but require them to bring them into compliance once the fence needs repaired/replaced.
3) Move forward.

Tim, if we stated that they had approval, would we then be able to say that they have to bring them into compliance as soon as they need repairs of any kind? These are 6ft wood privacy fences(mine normally needs a few boards replaced every year because of the wind here) so if they needed to replace a board would that mean that they have to bring it into compliance at that point?

I know for a fact that the builder/Board/PM did not grant approval, as the owners themselves have stated that they either did not know they had to get approval/or felt that since they were following( what they thought the rules were) they didnt have to get approval.

We are not dealing with selective enforcement, as the builder never enforced anything- hence the issues we have now, and the Board has sent notices to all the homes that have fences that do not meet the ARR.

That would be the boards call.

I look at it as a compromise to the whole issue.
The Board could determine that it must be replaced in x years, be replaced when x number of pickets need repaired or when the owner decides to physically replace the fence.

What I suggested was similar to what I had suggested to our membership as there were many inconsistencies from home to home due to various design changes. The suggestion was made into a bylaw amendment. Here is the language we used:

Grandfather Clause Any design change (past, present or future) to a Lot located within the [Name] Homeowners Association that was approved, in writing, or identified as being in compliance on any past, current or future disclosure packet properly issued under the Virginia Property Owners' Act, is hereby considered in compliance with current or future Architectural Guidelines providing the item identified is kept in proper repair and appearance and if replaced, the replacement must adhere to the current guidelines adopted and in force by the Association at the time of replacement.