BOD voting for rule which affects only half of community

Our Board is planning to allow fence extensions which can only affect half of the community. The other half cannot extend their fences due to physical limitations of available space. My community is 36 years old, is composed of 2-story four-unit buildings, and so far has not had such a situation. New owners have joined the Board and want to change things. All previous rules and regulations are for all owners. Is it lawful for a board to make rules like this?

I haven't seen anything in the CC&Rs but I will review. We are organized as a home Owners Association. An ARC was recently formed. I am the Chairman of the ARC.

Assuming this change passes, it would apply to all owners (who have the space available). If they don't have the space, it shouldn't matter.

We have restrictions that apply to some townhouses but not others (example, some have garages, others don't). Legal? Sure. Reasonable basis for different rules - Not arbitrary.

Just curious, Barb: Are there objections to the fence extensions? If so, what are the reasons?

Barb N Fla : Whatever the proposals contradict, would need lawful amendment & maybe by more than merely the Board or by a mere 1 vote more than a quorumed Owner Meeting.

Respectfully the trigger for needing lawful amendments is NOT whether or not physically the change would be physically impossible at some units. eg Selectively onto common elements : front yard pavings or balcony enclosurings or private gardens or ground-floor decking . .

Further there may be negative cumulative effects legitimately vexing to some owners with a right to kick the can. For example fencing extensions that might mar visuals, restrict landscaping access at perimeter, predict some eventual repair issues or sever/impede walking by owners enjoying perimeter access to exercise or to walk pets.

As Geno mentioned above, if changes are made that leave some units different than others then the changes should not be predicated on the idea that some members are favored over others.

NPS

In Barb's example they were not prohibiting some units from making the change. They were going to allow all to make the change but for some reason (she did not explain) not all of them could make the change.

In your example you are saying some units would be banned (the two entry buildings) from making the changes.

I see them as different issues.

In one townhouse association I was a member of we did come up with some allowable changes people had been requesting. Mainly bigger and more windows plus deck awnings (all tightly controlled changes). We had some that did complain it would ruin the "continuity" of the neighborhood but they were a minority compared to those that wanted or did not care about the changes.

Barb,

This is my understanding from the thread:

1) You are in a Homeowners Association (not a condominium).

2) Your Board is considering allowing fences to be extended onto common area.

If my understanding is correct, then what you need to look for is language within the CC&Rs that specify that the common area is for the enjoyment of everyone. For example, ours is in a couple of places:

Under definitions: "Section 3. “Common Area” shall mean all real property owned by the Association for the common use and enjoyment of the Owners."

Under property rights: “Every member shall have a right and easement of enjoyment in and to the Common Area and such easement shall be appurtenant to and shall pass with the title to every assessed Lot"

Based on this language, the Board may not allow any lot or several lots to enclose said common area, thereby denying the access and use to other members. The only way they could do such a thing would be to amend the governing documents to allow it.

However, the Board may, depending on language within your governing documents, sell portions of the common area to individuals to fence in. Such sale would need to be properly surveyed and recorded with the County.

I would suggest that you urge the Board to seek a legal opinion prior to giving away rights of use to common area authorized in the CC&Rs. If the Board tries to continue without the legal opinion and you are that passionate about the issue, you should consult a local attorney and file injunctions to stop any fence extensions until the issue can be ruled on by a court.

I hadn't thought of Tim's approach either because I thought she meant extend the fences to make them higher? Or, what if she means extend the fences in such a way that they do NOT intrude on common area.

But, IDK if she'll come back.

IMO, NpS, the finishing of the attic areas could improve the property value of those THs. To forbid four from that opportunity seems to create an inequity when none previously existed. I'd think that based on equitable legal principals, your HOA could get if trouble.

(I just recently learned about equitable legal principles from our HOA attorney in an opinion he wrote for us.)

Just curious: are you going to permit plumbing up to this space?

Not uncommon in certain types of lowrise shared ownership communities eg "lotline condos", are common element perimeters reached by common element lanes or "spokes".

Those may be targetted by attempts by adjacent owners to maximize private gardens or to deter general owners' use of that perimeter for exercising or dog-walking or whatever.

Some bitter condo battles have been waged in my jurisdiction over illegal fence extensions to reach the perimeter, including because the land-grab may render maintenance more complicated. Some of the perimeters & "spokes" have emergency response roles, but once "privatized" they are effectively gone for good . . Maybe similar targetting around others amenities too.

Barb,

I'm also in a fee simple town home community.

The end units have a larger footprint and more property. The fences are on the property line.
Yep, the interior units have smaller yards then the end units. That is part of what was purchased.

Our homes are all brick.
The fence ends at the rear of the property as well.