HOA Missed 60 day Window on ARC Guideline...

Started by CA5 • 6 replies • 1208 views

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CA5 (Maryland)
Posts: 2

Posted:

Our neighbor installed a 4' solid board fence to the rear of his property as part of his overall fence. We are limited by 4' height and the solid board is not allowed, per ARC guidelines. It has been up in excess of a year. When discussing fence heights and surfaces at our monthly HOA meeting, I was told that the denial to his solid board "slipped by" and since they are obligated to notify someone within 60 days and did not, it was allowed. So in essence, they have allowed a new style of fence. My question is: does this now make it permissible for others to have this style of fence since the BOD, ARC, and/or HOA mgmt company missed this? TIA...Cindy

JohnC46 (South Carolina)
Posts: 14,265

Posted:

There was a court case in SC where an owner asked for permission to build a garage. When the HOA did not reply within the time dictated in the Covenants/Bylaws.The owner went and started building the garage. The BOD replied after construction had begun that it was not approved and sued to stop construction. It dragged out and the owner finished the garage during the time.

When it finally went to court the court ruled the HOA was correct as the owner did not have permission to construct such. The owner was ordered to remove it.

The court effectively said no permission, no garage regardless of the interval.

TimB4 (Tennessee)
Posts: 21,061

Posted:

CA5,

Is the height limitation within your CC&Rs or within a resolution (architectural guidelines)?

If the height is a violation of the CC&Rs, then the Board can still enforce the height and the individual needs to lower it as the Board typically may not waive a covenant (unless specific authority is given within that document).

CA5 (Maryland)
Posts: 2

Posted:

The height is within the guideline, it's the style, which is solid board, and amounts to a privacy fence which I have the question about. Solid board (privacy fence) is not permitted within our guidelines (at any height). The HOA failed to send the owner any correspondence, approving or denying, the style within 60 days. Once 60 days have passed, it's a default allowance. Since this is now an existing style in the community, is the HOA obligated to allow this style to anyone who applies?

TimB4 (Tennessee)
Posts: 21,061

Posted:

No the Association is not required to approve others of similar style. It is also likely that when the fence needs to be replaced thst thr member will need to comply with existing guidelines.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By CA5 on 10/17/2016 4:12 PM
Our neighbor installed a 4' solid board fence to the rear of his property as part of his overall fence. We are limited by 4' height and the solid board is not allowed, per ARC guidelines. It has been up in excess of a year. When discussing fence heights and surfaces at our monthly HOA meeting, I was told that the denial to his solid board "slipped by" and since they are obligated to notify someone within 60 days and did not, it was allowed. So in essence, they have allowed a new style of fence. My question is: does this now make it permissible for others to have this style of fence since the BOD, ARC, and/or HOA mgmt company missed this? TIA...Cindy

That kind of depends on what the ACC Guidelines say. We have a 30 day period and included this statement in the guidelines that we re-wrote last year.

"In the event the ARC falls to indicate its approval or disapproval within the thirty (30) days after receipt of a completed application, including receipt of all required documents, then the approval process and the related covenants set out In the Declaration shall be deemed to have been fully satisfied, provided that the proposed improvements are in general harmony with the scheme and aesthetics of the development as set forth In the Declaration and these ARC Guidelines and do not violate any of the covenants. Any failure by the ARC to approve or disapprove an application in writing within the thirty (30} day period shall not constitute a waiver of the requirements of the Declaration or these ARC guidelines."

Unless there's something like that, it could be argued that the the HOA has acquiesced to the change.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Yep.

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