Precedent for Fences

My HOA will not allow fences to be built on my side of the street because it boarders our common area, for strictly esthetic reasons. But, homes on the other side of the street are allowed to have fences. Isn't that precedent? There is nothing in our bylaws and covenant that denies fences on my side of the street. The board is trying to put new guidelines in place, and trying to change the bylaws before they approve my application. I live in Charlotte, NC, and am not sure of the HOA laws here, but I believe that if nothing denies the fence in our documents, and other homeowners have them, then legally they cannot deny my having one. Can anyone help me with this?

Thanks for your reply. What do I need to do to convince the board that this is so? Do I need to see a lawyer?

Adrian, first, like KerryL1 wrote, can you confirm that your HOA's Declaration (also known as "CC&Rs" or "covenants" or "covenants, conditions and restrictions" say nothing about fences? If possible, please post your HOA's Declaration here, or provide a link to it.

Our Covenants state that the Architectural Control Committee is the Board. The Covenants state : Article X, Architectural Control": Section 10.2 Purpose:

The Committee shall regulate the external design, appearance, use, location and maintenance of the Property and of improvements thereon in such a manner so as to preserve and enhance values and to maintain a harmonious relationship among structures and the natural vegetation and topography. Colors, materials and design features will not be approved which will tend to make an individual house call attention to itself in the overall design of the subdivision.

Section 10.3. Extent of Control:

No building, FENCE, wall sidewalk, obstruction, driveway or other structure shall be commenced, erected or maintained upon the property nor shall any exterior addition, change repair or alteration therein be made without the prior written consent of the Committee..... Refusal or approval of plans... may be based upon any grounds, including purely aesthetic considerations, which in the opinion of and the sole and uncontrolled discretion of the Committee, except as provided in Section 10.7 shall be deemed sufficient..

I think this is enough to answer the questions raised.

No other homes have fences on my side of the street. Mine would be the first.

My home boarders a common area, no restrictive covenants exist, and I am willing to put up any fence the board will approve of. Their objection is that they won't like the way it will look. My safety is at risk, since there are coyotes, deer, and all kinds of wildlife walking up to my bedroom windows, which are floor to ceiling. I was charged at by a buck twice, just walking out on my property. Animal blood and feces have been on my deck, which is ground level. I'm fearful, which is why I'm asking for the fence. Their only concern is aesthetics.

Thanks to all who have replied.

I usually agree with Augustin, but it occurs to me that this might be one of those "Buyer Beware" situations whereby the purchaser of this home perhaps should have noticed the surroundings and maybe checked a little further about safety.

Barring more information, and for the reasons Kerry gives, I agree the OP's chances are iffy.

The North Carolina Supreme Court ruled otherwise in 1975. From Boiling Sp. Lakes Div., Etc. v. Coastal Serv. Corp., 218 S.E.2d 476 (1975):
"The exercise of the authority to approve the house plans cannot be arbitrary. There must be some standards. Where these standards are not within the restrictive covenant itself, they must be in other covenants stated or designated, or they must be otherwise clearly established in connection with some general plan or scheme of development. Vaughan v. Fuller, 278 Ala. 25, 175 So. 2d 103 (1963); Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, *479 449 F.2d 361 (1969); Levin v. Mountain Farms, Inc., 22 Conn.Sup. 14, 158 A.2d 493 (1959); Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430 (1957); Carroll County Dev. Corp. v. Buckworth, 234 Md. 547, 200 A.2d 145 (1964); Parsons v. Duryea, 261 Mass. 314, 158 N.E. 761 (1927); West Bloomfield Co. v. Haddock, 326 Mich. 601, 40 N.W.2d 738 (1950); Syrian Antiochian Orthodox Archdiocese v. Palisades Associates, 110 N.J.Super. 34, 264 A.2d 257 (1970); Plymouth Woods Corp. v. Maxwell, 407 Pa. 539, 181 A.2d 321 (1962).

And it is the general rule that a restrictive covenant requiring approval of house plans is enforceable only if the exercise of the power in a particular case is reasonable and in good faith. Annot., 40 A.L.R.3d, supra, at 879."

See https://law.justia.com/cases/north-carolina/court-of-appeals/1975/7513dc364-1.html

This part of the 1975 case has been cited a number of times in North Carolina court reviews of HOA architectural control decisions.

The language is written into our covenants, which were written 11 years after the appeals court ruling in NC. Can't speak for the Charlotte, NC fence issue. Thanks for digging that out.

Thanks for being civil. The case law (a.k.a. "common law" or "court-made law) trumps language in covenants saying the Architectural Committee-Board can be "completely arbitrary" or, as in the OP's case, saying, "Refusal or approval of plans... may be based upon any grounds... which is the opinion of and the sole and uncontrolled discretion of the Committee."

Covenants often also contain clauses ostensibly giving the Board and Declarant carte blanche to do whatever they want on one issue or another. These clauses always fail in court. The courts will throw out any HOA decision that is not "fair and reasonable," within the context of the particular situation.

Else ya know, some architectural boards would allow their HOA friends to, say, put burning crosses in their yard as a message to current HOA members and potential buyers about how the HOA feels about certain folks living there. This is a violation of federal anti-discrimination statute.

Hierarchy of laws at HOAs:
Federal law (statute and case law)
State law (statute and case law)
Municipal ordinances
Declaration
Articles of Incorporation
Bylaws
Rules and Regs

You probably need to read all the case law the decision cites, and then the subsequent case law that followed. You do not believe me, or won't anytime soon, but you have my position: Regardless of any implied permissions in the covenants for the Architectural Committees and HOA boards to be unfair and unreasonable, and "absolutely arbitrary," state law (and often federal law) in fact requires the HOA and its Architectural committees to be fair and reasonable, and not arbitrary, as they apply the covenants.

In 1995, the North Carolina Supreme Court cited the 1975 appeals court decision, in a case between a HOA and a member, adding:
"Therefore, the covenant is enforceable according to its terms, at least in the absence of any evidence that the ARC acted arbitrarily or in bad faith in the exercise of its powers."
"Defendants, however, produced no evidence that the ARC acted arbitrarily or in bad faith when reviewing defendants' application or when making its decision."

The North Carolina Supreme Court decision hinged on whether the Architectural Committee acted arbitrarily. (The Court found it did not.)

See https://law.justia.com/cases/north-carolina/supreme-court/1995/572pa94-0.html .

I sense you are on the board or have been on a board. Would you be fine if a majority of the Board and the Architectural Committee approved burning crosses on people's lawns, because your HOA's covenants say that the ARC can be "absolutely arbitrary"? If so, why? If not, why not?