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6' fence

Started by RobinG3 • 18 replies • 1690 views

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RobinG3 (Michigan)
Posts: 5
Posted:
Hi,
I am not sure if you can stand another question regarding fencing, but here it goes.

Our deed restrictions run with the land for 25 years and we are in year 5 or so. the restrictions state; an owner may install fencing if (i.)if It is limited to the rear yard (ii.) it does not exceed 4 feet in height, (iii) it is made of a maintenance free material i.e.
aluminum, pvc, vinyl coated chain link , and (iv) the ACC" approves a plan in advance for it.

A previous request was put in for a 4' vinyl coated chain link fence and was denied by the ACC for not being aesthetically pleasing or that the majority of the homeowners did not want vinyl coated chain link. The ACC has the power to deny for any reason. This was challenged in court. The judge ruled that the 25 years are still in effect and the ACC doesn't have to approve it just because it is listed as an acceptable material.

Two 6' fences have been put up in the last 9 months. The board says because the owners went around and got 80% homeowner approval, that they approved the fence. The By-laws nor restrictions mention variances etc.

Was this within the boards authority to do?
GlenL (Ohio)
Posts: 5,491
Posted:
IMHO No the Board didn't have the right to grant these variances but unless an new Board or another Homeowner wants to take them to court to force their removal, I don't think there is much that can be done. If they had 80% approval, what should have been done is an amendment to the covenants allowing six foot fences.
Studies show that 5 out of 4 people have problems with fractions
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
I agree. Without an amendment to the docs, the ACC nor the BOD has the authority to grant the variance. Its really a shame your HOA spent so much money and actually went to court to disapprove your fence, which is clearly an allow material according to your docs but allows others to do the same. Personally, I'd either run for office and boot these toxic people out, or just move.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Robin

A BOD cannot make a ruling that overrides a Covenants/Deed Restriction. If your Covenants/Deed Restrictions limit fence height to 4 feet, they cannot approve a 6 foot tall fence or for that matter, anything over 4 feet tall.

In order to allow 6 foot fences, the Covenant/Deed Restriction would have to be amended by the homeowners.

Hope this helps.

TimB4 (Tennessee)
Posts: 21,062
Posted:
The Board may not waive a covenant unless the covenants give the board that authority. Typically, they do not. Expecting that your CC&Rs are typical, Yes the Board messed up.

If the individuals did have 80% of the members on their side, it may have been presented to the Board that we want to have this fence and have enough signatures to amend the governing documents. It's possible that the Board said, fine go ahead with the fence but never filed paperwork to properly amend the documents.

Robin,

I suggest that you request copies of the minutes from that time frame and see what they say as they could be more informative than hearsay. If the documents are still available, the current board may be able to file the amended
MatthewW4 (Arizona)
Posts: 500
Posted:
Quote:
Posted By RobinG3 on 04/25/2013 10:16 PM

The board says because the owners went around and got 80% homeowner approval, that they approved the fence.

If 80% of the owners have no objection to the taller fences, why not end the disputes permanently by amending your CC&R's to allow them. Better yet, given the amount of controversy fence rules create, eliminate all fence restrictions. I have no such restrictions in my neighborhood and the sun seems to keep rising in the east every morning and my compass still points north.

Your CC&R's should contain a provision for amendments.
KellyM3 (North Carolina)
Posts: 2,239
Posted:
Install the identical fence as the neighbors. Skip on chain-link, which is often resisted by HOAs.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Personally I would ban chain link of any type. I say it is rather tacky and industrial looking.
RobinG3 (Michigan)
Posts: 5
Posted:
The homes were turned over from the developer in 2007 with a 25 year time frame before any amendments can take place.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By RobinG3 on 04/27/2013 2:54 AM
The homes were turned over from the developer in 2007 with a 25 year time frame before any amendments can take place.

This is a typical misunderstanding Associations make of their documents.
Typically, even though the document is bound to the land for x number of years it can still be amended during that time frame. I've yet to see one that prohibits it.

Robin, could you please share the language used for amending your CC&Rs?

Tim

RobinG3 (Michigan)
Posts: 5
Posted:
This Deceleration runs with the land an:! mill be a burden on and benefit to the
Developer, its successors and assigns. and any person with an interest in a Lot for
25 years from the date it is recorded. At that time, the restrictions will be
automatically extended for successive 10-year periods unless a majority of the
current owners of lots sign and record an instrument changing them.

This was challenged in court and found to be valid by the judge.
RobinG3 (Michigan)
Posts: 5
Posted:
Unfortunately they aren't allowed and WAY more expensive than 4' ones.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Robin,

That section specifies that unless the CC&Rs are amended the existing CC&Rs will continue to be bound with the land. It does not say how to amend them.

There should be another section that specifies how to amend the CC&Rs.

For example mine includes how to amend in that same paragraph:

Section 3 Amendment: The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of twenty (20) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years. These covenants may be changed or amended in whole or in part at any time by the Association or its successors or assigns; provided however that at all times the open space shall remain as such and approval of fifty-one percent (51%) of all Class A members is obtained.

Your Association appears to have it in a different section.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By RobinG3 on 04/27/2013 6:22 AM

This was challenged in court and found to be valid by the judge.

May I ask if the challenge was about amending them or if they were about something else.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
I agree with Tim. I have never seen Covenants/Deed Restrictions/Bylaws that the Declarant and/or owners could not amend.

TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By RobinG3 on 04/27/2013 6:22 AM

This Deceleration runs with the land and will be a burden on and benefit to the
Developer, its successors and assigns. and any person with an interest in a Lot for
25 years from the date it is recorded. At that time, the restrictions will be
automatically extended for successive 10-year periods unless a majority of the
current owners of lots sign and record an instrument changing them.

Robin,

I know that your focusing in on the phrase "at that time." However, I see that as a reference to the extension of the CC&Rs and not the amending them. Per what you posted, it appears that a simple majority of the membership is all that is needed to amend them which can be done at any time.

Allow me to explain my interpretation:

At that time, (the end of the initial 25 years)
the restrictions will be automatically extended for successive 10-year periods (self explanatory)
unless (a condition that allows a change)
a majority of the current owners of lots (establishes # needed)
sign and record an instrument changing them. (specifies how the instrument can be changed)

What it doesn't say is when those changes can occur.

An interpretation could be that only "at that time", the continuing extension of the CC&Rs.

Another interpretation could be that the amendments can happen at anytime and once the change is recorded, when the initial 25 years ends (at that time) the amended CC&Rs will continue to be bound with the land.

Typically courts have sided with the second interpretation. However, since you posted that your paragraph has been challenged, it would be good to know what was challenged (the issue of it being bound to the land or the issue of amending the CC&Rs).

RobinG3 (Michigan)
Posts: 5
Posted:
The challenge was,could the documents be amended in the first 25 years. The answer by the judge was NO they could not be amended in the first 25 years. So the board has decided that the way to circumvent that would be to approve anything that an owner got a majority signature on.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
By circumventing the CCR's, the board is completely ignoring the CCR's. The board does not have the power to do that.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Interesting ruling.

Thank you for sharing.

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