Retroactive enforcement

Started by RR3 • 6 replies • 1386 views

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RR3 (Texas)
Posts: 40

Posted:

Hi all,

Just another question. We have had homeowners who previously had fences approved on berms. Our CCR's clearly state no fences on berms. The developer approved these fences and going back to some of the approval letters we found the following verbiage: "approved as submitted so as long as they follow all conditions set forth in handbook or approved as submitted, subject to the CCR's." The homeowners once they received approval decided to install on berms which is against the CCR's. Can ACC go back and retroactively enforce this to notify the homeowner they need to remove the fence on the berm. While homeowners did get approval they didn't follow the approval letter which clearly stated not to install on a berm. What do they do?

SheliaH (Indiana)
Posts: 6,964

Posted:

Since the letter clearly stated the berms were against the CCRs, but these folks installed them anyway, you could go back and enforce it, but on the practical side, how long have these fences been up? Assuming these berms are part of the common area, is there a risk for damage if the fences stay up or has it already occurred? Is the ACC or the Board willing to go to court or alternative dispute resolution if people howl about taking them down (because they will)?

If there hasn't been any major damage and depending on how long the fences have been there (as well as their current condition), I might send these homeowners a letter with a copy of the original approval letter noting the fences were put up against regulations and perhaps give them a year to take them down. If the fences are in bad shape and/or causing damage to the common area, they need to be removed as soon as possible. Be sure to remind them of any appeal rights so they can explain why they ignored the letter. There may also be a chance the home was sold after the fence was installed and the new homeowners don't know this fence is against regulations.

If the board decides the fences can stay until it's time to replace them, you need to say that in the letter. The board might want to note all this in the next meeting's minutes, listing the lot numbers (not addresses) of the offending homes, so future boards will know what's up.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 5,144

Posted:

Shelia's post is right on. The big questions to me are:

Are the fences on common areas (a.k.a. areas that the Association must maintain)?

Assuming the fences are not on common areas, how long have the fences been in place without the Association challenging them? Case law says this will come into play when an Association tries to retroactively enforce covenants. The longer the fences have been in place, the lower the Association's chances of prevailing in court are.

TimB4 (Tennessee)
Posts: 21,059

Posted:

How far back are you talking (years)?

Our Association policy is that the Architectural Committee takes a look at the approved change after it has been done. This way, the Committee can be sure that the change is within compliance of what was approved.

If your Association doesn't have such a policy, you may want to create one to keep this issue from happening in the future.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

My first blush is the owners did get a permission for a variance and it stands for those that get such. It does not mean going forward, others have the same permission/variance.

RR3 (Texas)
Posts: 40

Posted:

Good advice

RR3 (Texas)
Posts: 40

Posted:

Just a couple of years but I think you are right. This is a policy that will be instituted.

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