Fences

Our Board is trying to understand the term "Original Construction" used in our Conditions and Restrictions document. Any help in interpreting this term is appreciated.

Welcome to the forum, Dixon.

I af free with Melissa that "original construction" means whatever the developer put it. but if you'd write the whole sentence from your CC&Rs, we'd know what those two words mean exactly. Alone, they're kind of meaningless.

Thanks for the responses! The complete sentence is as follows:

"Except for original construction, no visible fence, hedges or wall, except as provided in the original construction of the Subdivision, shall be constructed in the Subdivision."

I need some help please! I live in Georgia. We purchased our home in 1988 with an existing wooden fence as part of our property. The previous owners had received approval from the HOA to construct this fence. The fence is approximately 13 feet from a neighborhood lake. The fence in no way block entrance nor egress to the lake. At the time of purchase we received a clear title to all properties. In 2004 the HOA adopted a rule that all fences (structures) must be 25 feet from the high water mark. The high water mark is determined by where the green grass stops growing at the pond. Now, with a new Architectural Committee Chair she has decided it is time implement this rule. Oh, as far as we can tell our HOA has no written rules concerning grandfathering.

With a clear title to all properties

With HOA approval to construct fence

With time delays in implementing rule. approx 28 years.

What should I do. Any direction greatly appreciated!!

Thanks, Ed

No not to this point. e just received a letter expressing their concerns. We have responded by asking we be considered for grandfathering in this situation. The next HOA Meeting is this Thursday and we expect a letter demanding we remove the fence.

Shelia, thanks for your reply. Your reply stated: I hope you have a good reason for asking to be grandfathered. This tells me I am probably fighting a losing battle. This is all new to me so I really appreciate your experience/expertize. In your opinion: am I on the losing end of this situation?? Thanks again for your advice.

Maybe, maybe not - you said the HOA expressed concerns about your fence, but didn't say what those concerns were, such as whether there have been complaints about the fence. Don't waste time speculating - instead REREAD the letter you received and start developing a response. Contact the president and ask to be put on the agenda at the next board meeting or schedule a hearing (depending on how your community operates) so you can make your argument. After you speak your piece, the board will tell you where it stands and THEN you can respond. Hopefully, there will be some sort of compromise everyone can live with.

By the way, just because a specific rule hasn't been enforced in many years doesn't necessarily mean that rule is now tossed out the window. Sometimes other things have had the board's attention for a certain period of time, previous boards may not have pushed the issue because they didn't think it was important, and so on. And yes, some boards have started enforcing rules, people get mad and race to the courts and a judge rules in the homeowner's favor, saying "well, the HOA hasn't enforced X in so many years, so the rule no longer applies (not necessarily in those words). It would have to depend on the issue - perhaps the board is now enforcing the rule precisely because people have folded, spindled and mutilated the lack of enforcement to the point that anything goes and it's not a good look for the community.

Our association attorney served on a panel during a local CAI meeting on rules enforcement where this issue came up, and he said (and I've seen this written elsewhere, including this site) that it's best for a board to first put everyone on notice, as in "we realize X rule hasn't been enforced consistently, but effected on Y date, we will start doing so." The board should explain why there's a new emphasis on enforcement, remind everyone that the rules were set up to preserve the original look and design of the community and give everyone a chance to fix the problem on their own, ask questions if they don't understand it - and yes, consider grandfathering in people who've had a certain thing on their property for some time.

Grandfathered homeowners should be told they are expected to keep the thing in good condition and comply with the standards when the time comes to replace it, starting with submitting a formal exterior change request. The board should also encourage people to comment on the rule itself - perhaps it's no longer needed or needs to be tweaked to reflect current thinking, design standards, etc.? If so, make the suggestions and perhaps a committee could be establish to study the rules in more detail and propose amending that portion of the CCRs (which almost always require homeowner approval).

Our attorney said boards should expect some pushback for whatever reason (regardless of what you say, some people feel rules apply to everyone but them), and depending on the issue, there may be some yelling for a while, but if you stick to your guns and apply the rule consistently and fairly, giving people a chance to appeal, they eventually calm down. Good luck to you!

Thanks so much for your replies. This is very helpful for me. I wish all the best!!
Thanks again.
Ed