Cc&r, bylaws vs "unofficial" rules

Started by DanielleM3 • 3 replies • 1239 views

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DanielleM3 (Indiana)
Posts: 3

Posted:

Our community has CC&Rs that only state "no chain link fence". That is the extent of the guidelines for fencing. The bylaws say nothing. There is a "guidelines for architectural change" form that lists guidelines for fencing, but these are mentioned nowhere in the covenants and nobody seems to know where they came from. There are no official signatures, filing date, etc on the document. There are homeowners moving in (new construction off of an established neighborhood) who were given the covenants and now finding out there are other specific guidelines- only 4' picket fence or split rail, placement, etc. Can anyone tell me which documents are enforceable? Fences must be approved, but nobody realized they would be denied based on a document not given. Just curious for other input.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DanielleM3 on 06/30/2017 7:28 PM
Our community has CC&Rs that only state "no chain link fence". That is the extent of the guidelines for fencing. The bylaws say nothing. There is a "guidelines for architectural change" form that lists guidelines for fencing, but these are mentioned nowhere in the covenants and nobody seems to know where they came from. There are no official signatures, filing date, etc on the document. There are homeowners moving in (new construction off of an established neighborhood) who were given the covenants and now finding out there are other specific guidelines- only 4' picket fence or split rail, placement, etc. Can anyone tell me which documents are enforceable? Fences must be approved, but nobody realized they would be denied based on a document not given. Just curious for other input.

What is stated in your CCR's is what is attached to property titles and potentially enforceable. Potentially if the homeowners do not like what the CCR's state the alternative is to have a meeting and vote to "change (a.k.a. Amend) the CCR's" to state something different. If you are under Developer Control has this issue been brought up to the developer? ... because depending on your Documents, Time Frame for Developer Control, etc. ... Potentially the Developer can make said Amendments to the CCR's without majority of homeowners.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Danielle

It is impossible to list everything such as the types of fences allowed though it is not uncommon to ban a specific style like chain link. Typically when one wants to erect a fence they must seek approval and this is where the control comes in by the BOD or ARC not issuing approval. The BOD can establish Rules and Regulations such as limiting fences types and styles. In order for such restrictions to become permanent they would have to be incorporated into the Covenants.

AugustinD
Posts: 5,144

Posted:

DanielleM3, your concerns are valid, and I agree with what JanetB2 wrote. The courts have said Owners should not suddenly learn there are allegedly more restrictions on the use of their land than what is legally on record as "public notice." You could go to your County Clerk and see exactly what is on file, with regard to CC&Rs, Declaration, Bylaws, etc. (Though it sounds like you are already on top of the latter.) These documents being so filed serve as public notice to anyone having an interest in the use of the land. This means the documents are enforceable.

I respectfully disagree with JohnC46 regarding further limitations on the use of the land. Any further limitation would have to be incorporated via an amendment to what is on file at the County Clerk's. Also said further limitation must be approved via following the correct procedures (of what is already on file) for an amendment. The courts take seriously efforts by Boards that try to restrain Members from the right to enjoy their land. If what the Board wants and does is not within the bounds of what is on file, then a court will disallow it.

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