Privacy Panels (Party Wall) and Builder additiontions

Good Afternoon!

New construction PUDS and Builder is on Phase 3 of the community. He is selling extra privacy panels at the time a contract is signed. These panels are 6ft standard vinyl panels and 1 comes with the unit. I have a neighbor that purchased 2 extra panels to be added to 1 side of her yard, which the builders realtor suggested that she could add up to 2 extra panels and that the builder would install. The builder then completes the PUD and they all go to the property closing and the unit is then accepted into the HOA. Several months later the ACC sends her a violation notice that her panels were not approved by the ACC and demand her to remove 1 of them.

My neighbor bought the condo as built on August 15, 2017. Can I get some opinions on what her rights are? Here is the insert from our HOA on Fences and Walls.

Section 2. Plan Submission. Buildings, fences (no fences will be considered for approval other than those no greater than four (4) feet in height and made of black wrought iron or black painted aluminum), walls or other structures shall not be commenced, erected or maintained upon the Property, nor shall any exterior addition, modification, change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, location of such building, fence, wall, other structure, and any landscaping, have been submitted to and approved in writing as to the harmony and conformity with the exterior design and location of surrounding structures and topography by the Board of Directors of the Association, or by an Architectural Control/Review Committee comprised of three (3) or more representatives appointed by the Board of Directors of the Association. In the event that the Board of Directors or its designated committee fails to approve or disapprove of such design and location within forty-five (45) days after said plans and specifications have been submitted to it, approval will not be required and this Article will be deemed to have been fully complied with by the respective Lot Owner.

Then I read about Party Walls and there are not restrictions on the quantity. (my understanding is that this is different that a interior fire wall).

ARTICLE VI PARTY WALLS AND ROOF
Section 1. General Rules of Law to Apply. Each wall and roof, which is built as part of the original construction of the residential units upon the Property and placed on the dividing line between Lots shall constitute a “party wall” and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for property damage due to negligence, or willful acts or omissions, shall apply thereto.
Section 2. Sharing of Repair and Maintenance. The cost of the reasonable repair and maintenance of a party wall (including attached exterior walls and common roof) shall be shared by the Owners who make use of the wall in proportion to such use.

Then there is a fence guidelines put in place recently..(HOA homeowners did not vote on this and I am not sure we had to, but , I would think that it would have to be voted on and 75% favorable votes to add this to the bylaws).

Privacy and Fencing Guidelines (I show this was created on April 4th, 2018, and they are suggesting that previous placed fence panels on other units are grandfathered in, but I am sure that my neighbors would also be grandfathered in)

Privacy Area is the area that extends out from the back of the house (not including porches, sun rooms, other permanent structures attached to the house) a distance that will not exceed 1/3 the total distance between the house and the end of the flat surface of the yard (severely sloped areas contained within the property are not included in this calculation, nor are areas beyond a tree line) In cases where backyards are limited in size, Privacy Areas may exceed this limit but will require approval from the Architectural Committee prior to construction. A passable 10’ wide corridor must be maintained in the backyard for use by vehicles, equipment etc.

Patio's and or Privacy fences will be contained within the Privacy Area and be installed in such a way as to not limit the access to a 10' wide corridor. Privacy Fences are limited to 6 panels max as long as they don’t violate the1/3 rule.

Other fences (as defined in the By Laws) extending out from the privacy area must be placed on the side lot lines and allow for the 10’ wide corridor by either adding gates on both sides of the fence or leaving 10’ of passable space at the end of the fence. If the latter option is taken, a 6’ gate will be installed on the fence. There will be only 1 fence allowed per lot line.

Note: the gates will remain unlocked at all times to allow for emergency access.

Thanks for the help.

Here is my response to this issue to the BOD of the HOA. Any feedback would be greatly appreciated. I am sure the response from the HOA will come back to suit the boards agenda.

I do believe that the panels in regards to our HOA is referred to in the THIRD AMENDED DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, AND EASEMENTS, as a "Party Wall". The conclusion is made by not only the definition of a "Party Wall" below (BOLDED) which the panels are attached, but the by-laws in referencing fence restrictions of no more than 4ft in height and the material that can be used. No where does it reference the 6ft white panels and I do not see that you can change the requirements when these walls are detailed under the Party Walls and Roof, ArticleVI of the By-Laws. Unless the HOA has a signed agreement with the builder in regards to this issue as to the size, material and height, these "party walls" could be part of the deed, since they are actually itemized in the purchase agreement and part of the original construction and then your issues would be with the builder, not the homeowner. This would be a moot case if we were strictly a condominium development , and the HOA owned the land, but the homeowners own the land and the HOA is committed to the exterior landscaping maintenance by agreement.

If the HOA does not have the proper written and signed documents with the builder restricting him from making the decision to offer the additional "Party Wall" panels, which I believe the builder did not use any materials not previously used or practices previously used in the construction of the units, as he maintained the common scheme, then once the unit was sold, and the initiation fee was paid into the HOA, the unit was accepted as is, and then from that point, the enforcement of the HOA By-Law's and other conditions would be expected.

I would consider it a OOPS by the Board of Directors and/or the Architectural Control/Review Committee, if this issue was not spelled out in any signed agreements/documents requiring the builder to get approval for any exterior add on's, The homeowner can not be held responsible for issues prior to ownership and 8 month's later is demanded to correct a builder issue that is not/or may not be supported by a builder agreement with the HOA and then there is the "Deed" issue.

ARTICLE VI PARTY WALLS AND ROOF
Section 1. General Rules of Law to Apply. Each wall and roof, which is built as part of the original construction of the residential units upon the Property and placed on the dividing line between Lots shall constitute a “party wall” and, to the extent not inconsistent with the provisions of this Article, the general rules of law regarding party walls and liability for property damage due to negligence, or willful acts or omissions, shall apply thereto.

Section 2. Sharing of Repair and Maintenance. The cost of the reasonable repair and maintenance of a party wall (including attached exterior walls and common roof) shall be shared by the Owners who make use of the wall in proportion to such use.

If the owner purchased a new unit from the builder which included the panels then the HOA would potentially loose a lawsuit as the “builder” is the individual who placed the panels and was responsible for getting HOA approval (which many times in a new HOA is the builder themself). Also, you might check your State Statutes ... for example in my state if a potential “permanent type fixture” such as a fence, shed, home addition, etc. was placed and the HOA does not file a lawsuit within one year of placement ... the owner gets to keep what was constructed. If the owner purchased in August 2017 and it is now August 201i8 then there may be an issue with regards to time frame.