Fence

Started by MichaelR16 • 8 replies • 810 views

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MichaelR16 (Oregon)
Posts: 3

Posted:

CC&Rs say fences and yards have to be approved by ARC. The problem is the developer is the only one on the ARC. Actually he is only one in charge period. He has in the CC&Rs that he doesn't have to have a turnover meeting until 100% buildout. He gave himself one lot and has told other homeowners he will never sale last lot so he can stay in control of everything. So the issues is two things. First we won't allow me to build a fence in the back yard. 3 Other lots have the same fence in there back yard that I wasn't too build. How can he tell me I can't have a fence but other people in neighbor do? Also, he told me I couldn't build a fence in the front of my house. If the CC&Rs only say you need ARC approval. How can he illegal denied me? Doesn't he have to have a reason? Other than he just doesn't like it. Kind of like you have to have your house paint a certain color etc. There is know where in cc&rs that say we can't have fences. Just that we have to have ARC approval. Developer is bullying only us and allowing other people to do things. Please help.

BenA2 (Texas)
Posts: 1,273

Posted:

Every state has different laws but many laws state that the developer loses control when a certain percentage of properties are sold. The developer maintaining control indefinitely, by owning one lot, seems contrary to the whole purpose of HOAs. My guess is that he probably cannot do it but you may have to contact an attorney to be sure.

Usually, if the fence or other structure does not violate the restrictions, the ARC would have to approve it. The fact that the CC&Rs say you need approval does not mean they can disapprove for no reason. However, many CC&Rs give the ARC broad discretion in approvals. For example, if the CC&Rs say the ARC can approve or disapprove based on uniformity or similar language, then they may be able to. Approving a fence for one owner and not another when everything is the same would be illegal, in my non-lawyer opinion. However, if the circumstances are different, it may be okay.

Again, every state is different. In some, if the restrictions are not unambiguous, the courts must rule in favor of the property owner. In others, the courts give HOAs more discretion to interpret restrictions.

DouglasM6 (Arizona)
Posts: 724

Posted:

Is there a Board of Directors? Officers? Meetings?

MichaelR16 (Oregon)
Posts: 3

Posted:

No there isn't. The developer hired a HOA but the HOA person does whatever the developer wants. He is everything. It is a one man show. We have asked for a turnover meeting and the HOA person refers me back to CC&Rs that state we have to have 100% build-out before he will gives us a meeting. It has been a nightmare.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Well they did not hire a "HOA". They hired someone to manage the HOA. Your pretty much stuck until the developer is out of the picture. Even then, you still have to get approval from your "peers" for approval. So not much you can do but wait or develop a plan for a fence they will agree to.

Former HOA President

MichaelR16 (Oregon)
Posts: 3

Posted:

So it is totally legal for him to hold on to the last lot and not sale it so he can stay in control? That just doesn't seem legal.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Keep in mind that what is legal is not always what is ethical.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Legality will depend on what is in the contract, the CC&Rs.

Ethical is what is in ones character.

GlenM4 (Tennessee)
Posts: 141

Posted:

I would say it would be very hard to fight this pretty much if the CCrs is like most.. The developer will have the right. One route may be to sue for breaches of fiduciary duty, unfair and deceptive trade practices. but this would be something you would have to talk to your lawyer about.

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