Denial of ARC request for enclosed fence

Below is an email that I sent our property manager tonight. It explains my question/concern. I thought I would post it here and see if anyone has some advice or suggestions on the topic.

Eric,

We could really use some advice from you or someone else from your company. We have an issue with a resident that submitted an ARC request to build an enclosed fence that would be behind their condo. She originally made the request last year with the previous Board. Her request was denied. Once the latest Board was formed she submitted the request again. The ARC committee recommended that the request be denied and the Board officially denied the new request. She will be getting notice of the rejection along with the following rule that it would violate:

"The Committee believes it is not the intent of the Declaration for Condo residents to install fences on the common area property. Section IX, A. 2. Includes “no residence owner nor any other person shall bring any action to partition or division of the whole or any part of the common areas”. Lax enforcement of this and other declaration principles may have allowed for fencing beyond the unit’s footprint in the past. A consensus of the Committee believes this must be corrected going forward."

The problem is this homeowner has been borderline hostile about our decision and argues that previous Boards approved fences. As far as I know, it has been a long time since any enclosed fence was approved. It is our position that these previous approvals where made in error and that we are not bound by the mistakes of previous Boards as long as the current Board is consistent with it's policies.

I'm not asking for you to give us legal advice but I would like to know what you think about this based on your experience with other communities. Are we on firm ground denying this request? Any thoughts you have on this matter would be appreciated.

Thank you Shelia! We are having a community meeting Nov 2rd and rule enforcement, and the reasoning behind it, is on the agenda. I appreciate your feedback.

I agree that it is appropriate to deny this request based on the "rule" cited. I assume you have double and triple checked your documents to ensure that nothing even remotely permits owners to install fencing.

You could also consider substantiating your current decision by referencing the previous denial (by the prior Board) of the same request.

Finally, I might suggest adjusting your statement that "A consensus of the Committee believes this must be corrected going forward." This could be interpreted in a couple of different ways: 1) That you may seek to have existing fences removed, or 2) That the existing fences will be allowed to stay (because they were improperly approved by prior Boards) but that no other fences will be approved.

If this homeowner interprets this that you may seek to have existing fences removed, then will continually hound you on this statement, expecting over the years to see the fences disappear (even if your intent with the statement is that existing fences can stay but new ones will not be approved.

The real problem is that the owner wants to claim a portion of the common elements for her exclusive use. Legally, all owners have the right to use the common elements, and owners may not interfere with others' rights in this regard. (Read the sections of your governing documents where the common elements and unit owners' rights are defined.)

The board/architectural committee would have been out of line if they had approved the request for a fence, and would very likely have been challenged by other owners. As Sheila said, if the person who wants a fence threatens to sue, tell her to bring it on - she's going to lose.

And one more thought, and I promise to pipe down after that:

I'm also assuming you're worried that a court may decide that previous board decisions make the "no fence" restriction unenforceable. However, if your governing docs are like mine, this is not a restriction - it involves ownership and property rights. I'm not a lawyer, but I would think that these would be a lot less flexible than the restrictions that are spelled out in your docs.

Good luck. It's annoying that something which is so clear according the CC&Rs (assuming yours are a lot like mine) and so not open to interpretation was messed up by previous boards.

It can get complicated. Many CC&Rs have language to the effect that permitting one violation to persist does not constitute a waiver for future violations and that the association retains all rights to enforce in the future. Then you have violations that can be permanently allowed to exist if the statute of limitations on enforcement has run out. Does enforcing a new violation in the face of a similar violation that has aged out via the statute of limitations constitute Selective Enforcement? Probably not, but it's expensive to go to court and find out. Which is another good reason to enforce all violations equally and fairly from Day 1.