Fencing Regulations

Holly

Could you provide the exact language regarding the fencing materials which may/must be used, and any language which specifies where the fencing material may or must be used.

I am familiar with fence guidelines which stipulate only one type of material, wrought iron for example (in reality, steel these days), may be used on a defined lot border, even though wood is allowed on other borders or only on certain lots.

Also, have you asked for an explanation as to why your application was not approved? Ask the property manager or architectural committee to cite chapter and verse of your Declarations or Guidelines.

As to the two questions you ask, Yes, the association may indeed have those rights, depending on the language in your Declaration or Guidelines which have been developed and communicated as authorized by the Declaration. You should have been given a copy of both when you purchased your property.

This is the section in the guidelines regarding fencing:
FENCING

All fencing must be approved by the ARC. Fences may not exceed seven feet (7’) in height. No fence may be constructed on or inside the front setback line of a lot.

(2) Fences must be constructed of cedar, vinyl or wrought iron only. No treated pine lumber is permitted in the subdivision. Subject to prior approval by the ARC, chain link fencing that will not be visible from other lots in the subdivision or from a private street may be allowed; otherwise, no chain link fencing is permitted, including fencing for dog kennels.

If a cedar fence is constructed, no poles, posts, diagonal pickets, horizontal pickets or other structural components may be exposed on any portion of the fence that will be permanently seen from a private street.

If an owner desires to paint or stain fencing, owner must submit color and brand of paint or stain to ARC for approval before application.

Subject to prior approval of the ARC, owners may retain any existing barbed wire fencing on lots that abut the perimeter of the subdivision and new fencing will not be required relative thereto.

There is also this language at the end of the architectural guidelines document:
THE ARCHITECTURAL GUIDELINES ARE UTILIZED TO OUTLINE THE GENERAL SCHEME OF THE NEIGHBORHOOD AND IMPROVEMENTS TO THE INDIVIDUAL LOTS. THE FACT THAT ANY CERTAIN ITEM THAT IS NOT ADDRESSED HEREIN DOES NOT EXEMPT ANY OWNER FROM OBTAINING APPROVAL PRIOR TO MAKING ALTERATIONS AND/OR IMPROVEMENTS TO ANY LOT. THE ARC WILL NOT MATERIALLY DEVIATE FROM THESE GUIDELINES. HOWEVER, THE ARC MAY NOT APPROVE ANY PLANS THAT ARE IN CONFLICT WITH THE AUSTIN COLONY RECORDED DEED RESTRICTIONS.

I've attached the entire document in the event something else might be necessary to review it!
Thanks so much!

HollyD, what you posted is something invented by the few people serving on the ARC. These guidelines have legal power only if the Declaration of your HOA supports what is in the guidelines.

Sorry to trouble you, but please quote exactly what your HOA's Declaration says about fences and also, the powers of the ARC.

The Covenants, Deeds and Restrictions has this language (this is the entirety of the section regarding fences and is directly quoted):
Walls, Fences and Hedges. All lots shall be fenced in accordance with specifications therefor established by the Architectural Review Committee. Prior to occupying a Residence, each Owner shall be responsible for constructing a fence along the perimeter of the rear and side property lines of the Owners Lot. In no case shall a fence be constructed nearer the front of a Lot than the front building set back line show on Exhibit A attached hereto and incorporated herein. In the cas of adjacent Lots sharing a common property line, each Owner shall be responsible for the Owner's proportionate percentage of the cost of teh Lot's interior shared property line fencing. ...(information related to who pays for fencing, not relevant to my issues)...
The Architectural Review Committee, or its assignee, at its sole discretion is hereby permitted to grant deviations in height, location, and construction materials relate to fences and walls which in its judgement will result in a more beneficial use. Any wall, fence or hedge erected as protective screening on a Lot by Declarant, its agents, or its assignees, shall pass ownership with title to the Lot, and it shall be the Owner's responsibility to thereafter maintain said protective screening.

In my experience, no. I read a lot of case law on HOA ARC situations. First, where there is discretion (as in this case), the ARC has to be reasonable. First, clearly the ARC is fine with a fence. Second the guidelines (which are authorized by the Declaration) say "or." In my experience the ARC is not at all on solid legal ground to demand the fence be wood.

Where an ARC or board has discretion, the ARC or board has to be reasonable. In general in cases like this, the courts say that "Reasonable" translates to the ARC following its very own guidelines. This ARC is not doing so. It is being unreasonable. In my experience, the law is on your side.

The covenants you kindly quoted state inter alia: "Prior to occupying a Residence, each Owner shall be responsible for constructing a fence along the perimeter of the rear and side property lines of the Owners Lot." I think the only reasonable reading of this is all the way down. If you disagree, please tell me your reasoning, based on the covenants and/or guidelines.

Fences are a much-treated topic nationwide in HOA case law. I will see what I can find for Texas. For now, I would start by writing a letter to the ARC as follows:

Dear Architectural Review Committee,

The covenants state, "All lots shall be fenced in accordance with specifications therefor established by the Architectural Review Committee." The ARC has established guidelines. The guidelines state, "Fences must be constructed of cedar, vinyl or wrought iron only." The guidelines also state near the end, "THE ARC WILL NOT MATERIALLY DEVIATE FROM THESE GUIDELINES" (emphasis is from the original document). For the ARC to now require only wood for fencing appears to me to be a material deviation from the guidelines.

Meant with the greatest respect, my understanding is that the ARC does not have the lawful authority to go outside the guidelines. Please reconsider your decision and allow me to install a wrought iron fence down the property line. Please let me know of your decision by December 6, 2020.

Thank you,

name
address
phone
email

Send this letter certified mail, return receipt requested to the ARC.

Thanks for the letter recommendation! It's perfect for what we are trying to convey!
I really appreciate your help!