Declarations, ARC approvals and wall/fences

Mike

When you say setbacks are you referring to such where a local ordinance might say no point of a building can be less then 50ft from the property line or are you referring to easements such as a utility company easement?

If a local ordinance says the setback must be say 50 feet, then your docs (including the Covenants) cannot override meaning your docs cannot say less then 50 feet.

When you say such and such is in your Declarations do you mean in your actual Covenants/Deed Restrictions or another document? As an example, a Rule & Regulation (such as an ARB Rule) cannot override a Covenant. If the Covenants say a 25 foot setback then an R&R cannot say less.

Just want to be sure we are on the same page here.

Thanks

Hopefully this will clear up questions.

As far as my research shows, there appears to be no regulation in this county or locale that regulates "boundary" fences. Correct me if I am wrong in thinking that means fences can be on property lines.

Also, If I understand correctly, CCRs can be stricter than government regulations but not looser?

Our CCRs state: No fence may be constructed or allowed to be maintained on any lot closer to lot line than the setbacks established

Under "setbacks" it also states Setback lines as shown on recorded plat or as described in the declaration of any amendment thereto so as to be nearer to the lot boundary line than such setback line

There is an attachment with setbacks being some feet from the boundary.

This, to me, means fences cannot be on boundary lines but must be along the stated setback lines. Yes?

And you would be wrong. The CC&R's can address issues ignored by local government, such as when a homeowner may set out his garbage cans. Unless there is a law forbidding fence setbacks in CC&R's, the declaration will rule in this case.

The local law says there is no set back for a fence. The CC&R says the fence must be within the legal setback. Hence 0"

I'm not sure the distance make any difference. The documents say "No fence may be constructed or allowed to be maintained on any lot closer to lot line than the setbacks established".

My understanding could be incorrect and that is why I'm asking the questions in the original post.

Yes Tim, I did. Since the ARC has routinely approved fences and walls outside of the setbacks (as allowed), does that make the setback rule unenforceable for the future?

Mike

I am not nor do I play a lawyer.

A lot line is the property within a lot that meets the local government set backs.

As an example let us say a lot is 100ft x 200ft. Now let us say the city has as a 20ft setback on all lot edges, the buildable lot size is 60ft x 160ft thus maintaining the 20ft setback on all 4 sides. This is common and typically applies to structures (house, sheds, pools, garages, etc.) only but does not apply to fences. Typically fences can go to the property line.

Now the tricky part of your docs say fences can only go to the lot line unless an exemption is granted. Why your docs were written that way I have no idea. Somebody had some reason but such a reason fails me right now. I have seen restrictions on fences going to a property line for safety reasons on a corner lot where fences to the property line could block views at an intersection. Could this be the case?

Again, not to play lawyer but there is something called Adverse Possession. Say one builds a fence short of their property line and never does anything to maintain the land outside the fence, like mow it, trim bushes/trees, etc. The adjoining land owner could maintain the land for a period of (I think 10 years in SC) then file/sue for Adverse Possession and could be awarded the land.

Hope this helps.

There is still the question if in the above scenario, has the declaration in effect been changed? We are a growing community and would like to avoid future issues if possible. Not so much in a homeowner wanting a fence on property lines and being refused as much as a neighbor not wanting a fence on the line between him/her and neighbor.