Can a HOA apply HOA rules non-uniformly ?

Started by SaswatiD • 8 replies • 2209 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

SaswatiD (Ohio)
Posts: 4

Posted:

Our HOA in Ohio recently asked me to remove a temporary protective fence that was guarding a 6 ft flowering tree from deer . We put up the fence about 4 years back, when the young flowering tree that had just been planted, was almost completely damaged by deer. The fence is nice, green wire mesh to match the grass around, and has been properly maintained. etc. The HOA was informed then, and they did not object at that time. It took this long for the tree to grow back to its original size. Now the HOA is asking us to remove this fence, because ours is a corner lot and the flowering tree is in the front yard. We requested the HOA to allow us to keep the fence for a few more years to allow the tree to grow strong. But they refused, and have fined us $100.00 (which I just paid) and is also now threatening to assess more penalty and issue a lien against our property for this "offense". Our property is maintained very nicely, and much better than many other properties in the same neighborhood. Several other homes in our neighborhood have similar protective devices around their trees , most of which are much bigger than ours. None of those homeowners were asked to remove their fence....... I wish to understand if , in the State of Ohio, is a HOA allowed to assess penalty to one HO while not assessing penalty to other homeowners, for similar "violation" . I am putting "violation" within quotation marks as it is unclear from the rules and bylaws whether a protective fence for young landscape protection should be considered the same as a fence along the property boundary in the front yard .... the rules are quite fuzzy, as written, and could be interpreted any way one wishes to. If we remove this fence now, this lovely flowering tree will certainly be lost to deer this winter.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By SaswatiD on 10/27/2015 8:13 PM
Our HOA in Ohio recently asked me to remove a temporary protective fence that was guarding a 6 ft flowering tree from deer . We put up the fence about 4 years back, when the young flowering tree that had just been planted, was almost completely damaged by deer. The fence is nice, green wire mesh to match the grass around, and has been properly maintained. etc. The HOA was informed then, and they did not object at that time. It took this long for the tree to grow back to its original size. Now the HOA is asking us to remove this fence, because ours is a corner lot and the flowering tree is in the front yard. We requested the HOA to allow us to keep the fence for a few more years to allow the tree to grow strong. But they refused, and have fined us $100.00 (which I just paid) and is also now threatening to assess more penalty and issue a lien against our property for this "offense". Our property is maintained very nicely, and much better than many other properties in the same neighborhood. Several other homes in our neighborhood have similar protective devices around their trees , most of which are much bigger than ours. None of those homeowners were asked to remove their fence....... I wish to understand if , in the State of Ohio, is a HOA allowed to assess penalty to one HO while not assessing penalty to other homeowners, for similar "violation" . I am putting "violation" within quotation marks as it is unclear from the rules and bylaws whether a protective fence for young landscape protection should be considered the same as a fence along the property boundary in the front yard .... the rules are quite fuzzy, as written, and could be interpreted any way one wishes to. If we remove this fence now, this lovely flowering tree will certainly be lost to deer this winter.

My first thought is are you certain no other home owners have been fine. We usually don't make public if and when we fine an owner which we rarely have to do.

My second thought is that this does seem unfair. But I don't know all the facts. Did you get a Board hearing on this matter?

SaswatiD (Ohio)
Posts: 4

Posted:

BonnieG1 : (1) I asked a few of the homeowners - they did not get a warning about their fence; and their fence is still standing; (2) We wrote to the Board, and requested to talk to them , but there was no response and no hearing. They just sent a letter saying the fence needs to be removed, followed by a letter imposing the fine. This Board has had the same people for many years - nobody can displace them - and they have behaved similarly towards us in the past, complaining about little things when the Board members had the very same problems in their own yards. We have always bent over backwards, trying to comply.

BobD4 (up north)
Posts: 1,002

Posted:

SaswatiD(Ohio) :

1 - If you take the time to read the previous 50 to 100 topics here, you will get a number of insights about the issue of alleged discriminatory, capricious enforcement.

Respectfully, think long & carefully about where - IF at all - you dare to defy your HOA. Its deep toolbox usually includes absolutely toxic social retaliation.

2 - If you cannot relocate the vulnerable front-yard tree to rearyard within conventional fence, there are deer deterring chemicals which some have found successful in our deer-packed community. Hungry deer here eat almost anything but not everything; there may be deer-resistant trees besides cacti.

If electrified livestock deterring wires comply with your municipal & HOA by-laws, consider them, but deer jump bigtime, as you have seen.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Hi Saswati

Generally speaking, rules like this are adopted by the board - but are not part of the HOA's organizing docs. That makes them the easiest to change.

Best suggestion is to get support among your neighbors to change the rule. If you have a garden or landscape committee, you might want to start there.

The first step would be to find out why the current rule is in place.

It may be so old that no one remembers. Or it may be that someone thinks that such fences are unsightly. Or that someone thinks that they impede grass cutting.

But reality is that mature trees add value to your community. And once the trees reach a certain size, the deer move on to smaller trees because their antlers get in the way.

If as you say, the rules are fuzzy, all the more reason to get things nailed down.

I realize that I didn't answer your question about non-uniform enforcement, but I think everyone who has a similar fence will rally to your support.

Sikubali jukumu. Read all posts at your own risk.

GlenL (Ohio)
Posts: 5,491

Posted:

Saswati first off the Board has to give you the option of a hearing before imposing a fine or as the statute calls it an "enforcement assessment" although you do not have to attend. Second have you looked into an alternative method of repelling the deer? (You might find this article helpful: http://www.motherearthnews.com/organic-gardening/deer-repellent-zb0z1208zmat.aspx)

5312.11 Individual lot assessments.

(C) Prior to imposing a charge for damages or an enforcement assessment pursuant to this section, the board of directors shall give the owner a written notice that includes all of the following:

(1) A description of the property damage or violation;

(2) The amount of the proposed charge or assessment;

(3) A statement that the owner has a right to a hearing before the board to contest the proposed charge or assessment;

(4) A statement setting forth the procedures to request a hearing;

(5) A reasonable date by which the owner must cure a continuing violation to avoid the proposed charge or assessment, if such an opportunity to cure is applicable.

(D)

(1) To request a hearing, the owner shall deliver a written notice to the board not later than the tenth day after receiving the notice this division requires. If the owner fails to make a timely request for a hearing, the right to that hearing is waived, and the board immediately may impose a charge for damages or an enforcement assessment pursuant to this section.

(2) If an owner requests a hearing, at least seven days prior to the hearing the board shall provide the owner with a written notice that includes the date, time, and location of the hearing.

(3) The board shall not levy a charge or assessment before holding any hearing requested pursuant to this section.

(4) Within thirty days following a hearing at which the board imposes a charge or assessment, the owners association shall deliver a written notice of the charge or assessment to the owner.

(5) Any written notice that this section requires shall be delivered to the owner or any occupant of the dwelling unit by personal delivery, by certified mail, return receipt requested, or by regular mail.

Added by 128th General AssemblyFile No.41, SB 187, §1, eff. 9/10/2010.

To read all of the statute, go to: http://codes.ohio.gov/orc/5312

Studies show that 5 out of 4 people have problems with fractions

SaswatiD (Ohio)
Posts: 4

Posted:

Thank you very much to everyone for your feedback, and to GlenL for the specific reference to the clauses above . Are these (5312.11 ) OH State laws, that all HOAs are supposed to abide by ?

NpS (Pennsylvania)
Posts: 4,216

Posted:

5312.02 Applicability of chapter; establishment of planned community.
(A) Any planned community in this state is subject to this chapter. No person shall establish a planned community unless that person files and records a declaration and bylaws for that planned community in the office of the recorder of the county or counties in which the planned community is located.

(C) Nothing in this chapter invalidates any provision of a document that governs a planned community if that provision was in the document at the time the document was recorded and the document was recorded prior to the original effective date of this chapter.

(D)

(1) The board of directors of the owners association of any planned community that is in existence on the original effective date of this chapter shall file and record the bylaws of that planned community that are in effect on that effective date in the office of the recorder of the county or counties in which the planned community is located within one hundred eighty days after that effective date.

(2) The board of directors of the owners association of any planned community that is in existence on the original effective date of this chapter shall file and record the bylaws that are adopted by the owners association on or after that effective date in the office of the recorder of the county or counties in which the planned community is located within ninety days after the date of adoption of the bylaws.

(5) No board of directors of the owners association of a planned community that is in existence on the original effective date of this chapter shall pursue any civil action against any person based upon any provision of the bylaws of that planned community or upon any amendments to the bylaws until the bylaws or amendments are filed and recorded under division (D)(1), (2), or (3) of this section.

Added by 128th General AssemblyFile No.41, SB 187, §1, eff. 9/10/2010.

Sikubali jukumu. Read all posts at your own risk.

PitA
Posts: 1,416

Posted:

Of course they can, and often do.

A better question would be: Should they?

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here