HOA Text vs City Text

We are wanting to put in a 48" black aluminum fence in our backyard and have been granted a variance from the City of Grove City, OH. According to the zoning text filed with the city, it stats that lots 1 and 4 of Grant Run Estates are not permitted to have fences. The Deed Restrictions text stats that lots 1 through 4 are not permitted to have a fence. We are lot 3. According to the OMNI HOA president David Dye, he says that it is of our "opinion" that there is a discrepancy between the two texts and that the zoning text is incorrect. It is not of my "opinion" that there is a discrepancy, but a "fact" that the two texts are different. My question is this, does the city supercede the HOA in this case? Is there anything we can do to go against the HOA and install the fence that the city has granted us.

If the HOA is still correct in this case, my next question is this. There is no restriction for our lot to install an inground pool, which by law you must have at least a 48" fence installed around any inground pool. If we decided to put in a pool, could we force the HOA to allow the fence around the entire backyard which we've been granted from the city and not just installed around the pool only?

We initially wanted the fence for the safety of our 2 Siberian Husky puppies as well as our 2 year old grandson. Our back yard backs up to the main entrance of the neighborhood which is a fairly busy street. The reason for the HOA restriction on these lots is simply because we are at the entrance of the neighborhood and they feel that it is a visual obstruction.

Thanks in advance for any advice!

If the fence restriction is in your covenants, then it's unlikely that the Board has the authority to waive the restriction.

If the fence restriction is a rule (architectural guideline) then the Board has the authority, but might not waive the rule.

My advice would be to come up with several plans for fences (you may need to compromise in height, style and placement. Then request a meeting with the entire board to discuss the issue. Be polite and non-confrontational at the meeting (more flies with honey). If one Board fails to approve, gather support and vote off those who are currently on the Board and replace them with individuals who will be more sympathetic to your issue. Then reapply.

We know which lot we have. We are on lot 3. The issue is not knowing which lot. The issue is the difference between the zoning text by the city saying only lots 1 and 4 are restricted from having a fence while the HOA deed restrictions text states lots 1 through 4 are restricted.

According to the HOA president, he feels the zoning text is incorrect and feels it doesn't make sense to only allow lots 2 and 3 while prohibiting 1 and 4. My argument is it shouldn't matter what he feels makes sense, it should matter what is in the text as being allowed and which department overrules (city or hoa). If the city says we can have a fence due to the way the zoning restrictions is written but the HOA says we can't, who wins? It basically comes down to a typographical error between the two texts.

Scott:

You ask:

If the city says we can have a fence due to the way the zoning restrictions is written but the HOA says we can't, who wins?

The HOA wins because as by signing to become a member of the HOA you agreed to adhere to their restrictions.

If I were you, I would look at pleading my case on it makes no sense to not allow fences on only 2 of the 4 lots.

> My question is this, does the city supercede the HOA in this case?

No.

The HOA documents can provide for restrictions beyond those of the city. There is no reason why the two documents need to be consistent.

The director is exactly right, the CCRs are a contract between the affected homeowners and contain rules that the parties agree to follow. The CCRs can't "overrule" laws, but as Tim mentioned, they can generally be more restrictive. Your city might allow houses to be painted purple, but your CCRs could have limits regarding the colors you can paint and preclude that violet hue you so desire. Unless your city law specifically disallows HOAs from restricting paint colors, then the HOA probably can restrict them.

Another biggie that's happening with a lot of condos is banning smoking. I don't of any state or city that bans smoking in one's own home, but some condos are amending their CCRs to do exactly that. These rules are obviously more restrictive than the city law, and I've not read anything about them not being enforceable.

Since the CCRs are a contract, they can optionally contain enforcement provisions (typically fines), or they might be silent on the matter. In the latter case, violations are handled similarly to any other breach of contract, the HOA (or any other homeowner) can sue to force compliance and potentially collect damages. If your CCRs do not allow a fence and you build one anyway, you are subject to those enforcement measures.

If the HOA sues, it's no slam-dunk that they will win, judges deny HOA suits for a variety of reasons. There are older HOAs in some areas where the CCRs still limit owners form selling to certain races, obviously this is counter to federal fair housing laws and an HOA trying to enforce would not prevail. There are cases where judges think HOAs are being unreasonable in the rules they are trying to enforce and rule against.

In your gun example, there might be laws that explicitly restrict the ability of HOAs to control. If not, then that restriction might be enforceable.

Yes.

With your background, I would expect that you are aware of contract law.
You agreed to abide by the terms of that contract (the CC&Rs) when you purchased the property.

Yes, gun ownership it's a great issue that many like to bring into the fold (but rarely provide examples of Assocaitions actually banning gun ownership)because the issue can bring about strong emotions. Typically, once emotions enter into a discussion, individuals quit listening to the actual debate and react with their emotions rather then their brain. It's a tactic often used.

Of course, if an Association had such a restriction it would likely get a lot of press.
Due to the press and what direction the political wind is blowing at the time, it would be unknown how a jury (if taken that far) would decide.


If you actually read those documents in full, they specify that the Government will not infringe on the right.
However, you as a private citizen, may voluntarily and contractually give away said rights.


Laws vary by State or, as you have pointed out, perhaps your Board of Directors simply received bad legal advice.

There are Assocaitions that have parking restrictions for members on public streets. Those restrictions have been upheld in many States.
In AZ, one legislature even proposed legislation to supersede such restrictions because the AZ courts were ruling the covenant was enforceable. See: New Arizona law limits future HOAs’ control of parking on public streets 2013 newspaper article

Also see: MARYLAND ESTATES HOMEOWNERS' v. PUCKETT, which seems to be referenced in many cases in other States and seems to be the basis for enforcing parking restrictions on public streets on Associations members.


The Director is only partially correct in the statement you provided.
Being more restrictive is not the same as overruling.
I provided a basic example. Now here is some basis for my earlier statement:

CC&R Basics from findlaw.com

Deed Restrictions Versus City And County Ordinances: Which One Controls 2014 article from an attorney blog

Do local restrictions trump HOA rules? from a NC legal blog

Do CC&Rs Supersede Municipal Codes? 1995 Q&A article int he LA Times

County Fire Code Authority and CC&Rs AZ Attorney General opinion (look at Summary Answers #2)

Did you ask your Planning Director for the basis of his statement?
Can you provide examples that others can independently verify that what the Planning Director said should be taken as gospel in your State?


I would expect that you signed something in your closing paperwork that informed you there were restrictions attached to your Deed.

If you did not, then perhaps you should be pursuing that avenue in the courts to see if you can have your Lot removed from the restrictions now.
However, if you did sign and failed to ask questions about them or failed to read them, then that fault is yours.

As Douglas pointed out, some States have lousy disclosure requirements and some States have fantastic disclosure requirements.

If your State is one with lousy requirements, you may want to contact your State representative and suggest a bill be enacted to provide better disclosure.

Thanks for the replies everyone! I understand now that HOA can basically add to but not take away from what the city states. Basically they are additive, not subtractive. I don't entirely know the reasons behind why they don't want to allow a fence on lots 1 through 4 other than that they say it is because these lots are at the entrance of the neighborhood and feel that they are an obstruction. However, the entrance of our neighborhood is at an intersection with other housing developments directly across on both sides. These housing developments however do allow fences at the same intersection. The type of fence we are wanting to install is a black wrought iron/aluminum fence that is very un-obstructive and blocks no line of site. I'm sure we've all seen wrought iron/aluminum fences before?

The road we back up to is a fairly decent busy road, so my next question is this, because we want the fence for the safety our pet dogs and grandchild, if the association is to deny the fence based on the aforementioned reasons, if in the future, our dogs were to break free of their chains or get past the electric fence and be struck by a car, could the HOA be held liable due to the forbidding of the fence? Or even worse if our grandchildren were to be struck.

Thanks for this information.
In reviewing the thread, I realized that I failed to address the statement Troy made on that topic:


Troy,

Condominiums (COAs) have successfully implemented and enforced smoking bans (of all legal things to smoke).

See:

Condo smoking bans: Can boards butt in? Washington Post Article

Condo owners win secondhand smoke case

It's The Law: Condominium is "Smoking"

Smoke Free Housing - Legal Rights and Cases

Marijuana in Condominiums: Nuisance and Legal Consequences

Legal Options for Condominium Owners
Exposed to Secondhand Smoke

Now, you did specifically post HOAs and not COAs.
Although you are correct that in HOAs, the Association tends to have little control on activity within your home, if the smoke goes outdoors or you smoke in the common areas, things are changing on regulating those activities.

See:

Smoking in HOAs: Conflict, Restrictions, & Liability

Marijuana Use in Condominiums and HOA’s

"Watch your kids and pets yourself" would be the generic answer. Would you be responsible for doing so in any other circumstance? Yes.

Sort out the difference between the HOA and municipality wording first. See if that goes anywhere.
It looks like you're one of the lots along the entrance road. The intent may have been to preserve the appearance of all 4 of those lots. Why? I haven't got a clue. They mandate fences in other areas. Idiotic if you ask me.

You asked about a pool. It doesn't look like they can prevent you from having a pool. In that instance, the city/county/state rules requiring a fence around the pool come into play. YES, you can put up a fence in that circumstance. What it looks like, and how much area it encloses is probably between you and your architectural control committee. But they cannot say no to the fence around a pool.

Thanks again everyone. When I mentioned about the hoa being partly held liable if something were to happen, I'm not implying we would let our grandchild run around out back unsupervised. I'm merely saying that in the case of our pets, leashes and chains do break, electric fences don't always work. It is a possibility one of those could happen and one of them get injured or killed.

As for the pool, I agree the association could say that by not allowing a fence implies we can't have a pool. But I could also argue that by not explicitly saying we can't have a pool also implies we can we have a pool which wouldthen requirk a pool.

The purchaser signed for the deed which, itself, referenced any restrictions or easements or covenants.

If no such reference, in the absence of 'other' signature, any CCRs would NOT apply to the property.

If they sign w/o reading and understanding: tough (like any other contract).