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ScottK1 (South Carolina)
Posts: 32
Posted:
I am on the board of a HOA in SC with 100 homes. We have had a new owner move into a house and install a fence without approval. He says he was told there were no rules only a charge for street lights, but then he tells me the guy next to him said that the only restriction was a fence had to be six foot tall which he said he knew was not correct so he put a fence like others have. He says he never received any CC&R’s at closing and that the HOA should have come to his door and told him what he could and couldn’t do. I explained that we didn’t know when he moved in or that he installed a fence until another homeowner told us.
The problem is he has a corner lot and this is what our CC&R’s say.
. No building or structure, whether it be the dwelling, garage, fence or driveway shall be erected, placed or altered on any lot until the building plans, elevations, plot plan and specifications, including exterior colors, have been approved in writing by Developer or its nominee.
. No chain link fence may be erected on any Lot, any part of which extends beyond a front comer of the residence constructed thereon.
His front door faces street “A “but his address is a Street “B” address. The fence extends from his house out towards street “B“ 10 to 12 feet then runs along street “B“. The board has ruled in the past on corner lots that a home cannot have a fence extend toward both streets. We are ruling that this was included in the CC&R’s so when looking down the streets you didn’t have fencing extending out from the houses towards the street. He says it doesn’t extend past the front corner of his house since his house faces street “ A “ and the fence comes off the back corner. But it does have a street ”B” address.
We have two issues with this, one him not getting an ARC approval before any work being done and the fence extending towards the street. He seems the type that is going to have to be forced to move the fence. Other board members I have talked to are afraid that if we force him to move it we will end up in court with possibly having to pay his court costs and attorney fees.
Are we correct in the way we are ruling and how we can get the fence moved. Isn’t the Boards job to interrupt the CC&R’S and Bylaws and enforce them equally to all members? We are a self-managed HOA with no common areas and a small ($150.00) yearly due. We don’t want to start off this way with a new member but we need to make sure everyone is being ruled on the same way.
Thank You
Scott
TimB4 (Tennessee)
Posts: 21,059
Posted:
Scott,

Based on your posting it appears that you have a grasp of what authority Associations typically have in regard to enforcing the CC&Rs. The issue seems to boil down to your Board being concerned that their authority in enforcing that rule would be overturned if challenged in a court of law (which is the main way you would be required to pay the members legal fees).

Perhaps you need to spend some money for a legal opinion as this may be the only way to convince the Board to move forward on the issue. Give copies of all written documentation (not hearsay) to the attorney and ask if the member violated the covenants and if the Board has the authority to enforce the covenants.

The final decision will still be the Boards.

I suspect that an opinion would cost the Board between 300 and 600 dollars.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By ScottK1 on 12/14/2013 7:41 AM
I am on the board of a HOA in SC with 100 homes. We have had a new owner move into a house and install a fence without approval. He says he was told there were no rules only a charge for street lights, but then he tells me the guy next to him said that the only restriction was a fence had to be six foot tall which he said he knew was not correct so he put a fence like others have. He says he never received any CC&R’s at closing and that the HOA should have come to his door and told him what he could and couldn’t do. I explained that we didn’t know when he moved in or that he installed a fence until another homeowner told us.
The problem is he has a corner lot and this is what our CC&R’s say.
. No building or structure, whether it be the dwelling, garage, fence or driveway shall be erected, placed or altered on any lot until the building plans, elevations, plot plan and specifications, including exterior colors, have been approved in writing by Developer or its nominee.
. No chain link fence may be erected on any Lot, any part of which extends beyond a front comer of the residence constructed thereon.
His front door faces street “A “but his address is a Street “B” address. The fence extends from his house out towards street “B“ 10 to 12 feet then runs along street “B“. The board has ruled in the past on corner lots that a home cannot have a fence extend toward both streets. We are ruling that this was included in the CC&R’s so when looking down the streets you didn’t have fencing extending out from the houses towards the street. He says it doesn’t extend past the front corner of his house since his house faces street “ A “ and the fence comes off the back corner. But it does have a street ”B” address.
We have two issues with this, one him not getting an ARC approval before any work being done and the fence extending towards the street. He seems the type that is going to have to be forced to move the fence. Other board members I have talked to are afraid that if we force him to move it we will end up in court with possibly having to pay his court costs and attorney fees.
Are we correct in the way we are ruling and how we can get the fence moved. Isn’t the Boards job to interrupt the CC&R’S and Bylaws and enforce them equally to all members? We are a self-managed HOA with no common areas and a small ($150.00) yearly due. We don’t want to start off this way with a new member but we need to make sure everyone is being ruled on the same way.
Thank You
Scott

Scott

Fences were one of the biggest headaches in my last HOA, especially the corner lots. Our covenants said no fence could be forward of the rear edge of the house. This was to limit fences to backyards. Problem with a corner lot, is its backyard is another homes side yard. The adjoining neighbor would complain that the fence was way forward of the front of their house thus blocking their view. When we got this complaint (more the once), we went with the philosophy that as backyard fences were allowed, that took precedence.

Primarily what you have is a classic case of someone saying I never knew about any Covenants. Quite common and it seems you know how to deal with that.

My concern would be for the BOD to have its ducks in a row on what fencing he will be allowed to have before you tell him he is error.

Your first move might just be an informal, casual conversation with the owner. Tell him that issues have been raised and you want to get a handle on it and make him aware before any "action" is taken. Make nice with him. Get a feel for is he going to try and accommodate or tell you to go have sex with yourself. I would also forget any hearsay from the neighbor. Do not pit them against each other.

Also ask yourself, is it really an issue as in you are getting complaints or is it someone being overzealous? If not an issue, then ask him to submit the proper paperwork and it will be approved.

Additionally I would not let this drag on before official notice/request is served.

Hope this helps.
RogerB (Colorado)
Posts: 5,067
Posted:
ScottK,
IMO your post illustrates a liability of HOA self-management. Did the association provide a status letter to the title company handling the title transfer? If so, the association would know the name of the new owner and the date of closing. Is the seller required by state law (such as in Colorado) to provide a potential buyer copies of Association governing documents and other documents prior to closing? If the association was effectively managed, the Buyer would have the applicable restriction in advance. If so, the Association could following their published and distributed guidelines on enforcement to require compliance by the new owner. When properly managed, the Association usually does not need a legal opinion or equire Court action.

ScottK1 (South Carolina)
Posts: 32
Posted:
The new owner did sign in his closing documents and on the deed that he received the CC&R's and was aware of the restrictions. Even though they did sign they say they did not get them. The title company or any other agency never notified the HOA of the sale. In SC when the home is listed with an agent the seller must fill out a form that says the property is in a PUD and the seller must furnish a contact person for the HOA. Sometime I get a call from closing attorneys asking for status of the owners account but not all the time. When they do call they won't furnish the new buyer info anyway.

Thanks everyone for the info
Scott

LarryB13 (Arizona)
Posts: 4,099
Posted:
Scott,

If the deed stated that the property was subject to restrictions, the buyer had notice. Whether it was legally proper notice is an issue between the buyer and seller. I am unaware of any body of law that exempts a buyer from the deed restrictions because he does not remember receiving copies of them at closing.

Before your association goes off the deep end trying to enforce your restrictions, have you checked with your local zoning authority? In most places where there is zoning a fence like the one you describe would not pass muster, although it sounds like this owner will claim that he also did not get a copy of the zoning laws at closing.

MelissaP1 (Alabama)
Posts: 13,836
Posted:
HOA documents like the CC&R's and Article of Incorporation are considered PUBLIC information. You can go to your local courthouse for a copy and the Articles published at the STATE level. There is no excuse because the HOA is NOT responsible for notifying anyone they entered an HOA. A few states require the seller to hand over the documents. However, most make it the buyer's responsibility to "be informed" since the documents are PUBLIC.

Former HOA President

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