Fencing- when can the HOA get a non-conforming fence to be changed.

Another question about fences. Our HOA has several fences that do not conform to the ARR, they were essentially granted approval by the builder-prior to the association being handed over to the Homeowners. Or we have decided to allow them approval because we do not want a legal battle over the fact that they have been there for 2 years and no one mentioned to the owners that they were out of compliance.

When can the HOA enforce that they bring their fences into compliance? I know that if they want to change the fence or it needs major maintenance we can make them bring it into compliance, but I am wondering if we can say that the fence must be changed if they sell the home?

Thanks for your responses, you have all been very helpful to our Board as we have been sorting out the fencing issues in our neighborhood!!

Meant to type "fences," not "forces," but I'm sure you got that. Since the builder approved them it would be wrong to force these individuals to have to tear down their approved fences and pay for new fences simply because they are different.

This one of the worst things that can happen to your covenants. Your developer filed covenants that said something was disallowed. Then he allegedly allowed two owners to violate the very covenants he recorded.

There is a question as to whether he even had the authority to override his own covenants. If there is nothing specifically authorizing him to do so in the declaration then he himself was in violation as were the two property owners who sought and received permission.

If the developer had no authority to grant a variance, then you have a real mess. The developer constructively amended his covenants by allowing them to be violated and every other owner is entitled to equal treatment.

I could be wrong but I do not believe that you can undo what the developer did. The smartest thing your board can do is forget about enforcing the fence-related covenants. If some owners object, let them pursue legal action against the offending parties at their own expense. This is such a can of worms that I would not spend a dime of the members' money on it.