Fence regulations

DavidG45 (Delaware)
Posts: 994

Posted:

Our three year old community has a "rule", enforced by the ARC since the beginning, that fences must be white viny, they must be split rail, and they must have exactly three rails. So everybody's fences are identical; which is fine. Most folks are good with the rule, and I've never heard anybody voice strong exception to it. However, the only documents that apply are the Declarations, whose verbiage is listed below. I have two questions:

* In the absence of a separate Architectural Guidelines document, can the ARC genuinely enforce this rule if someone were to challenge it?

* If an Architectural Guidelines document were written (as I've urged the ARC to do) could this rule be written and considered consistent with the Declarations? I'm hoping the answer is "yes" so an Architectural guide resolves everything.

Fences. Boundary Line Hedge and Shrubbery. No perimeter boundary
fences are permitted other than (i) a buried electric fence and (ii) with respect to Lots improved
or to be improved with detached single family homes only, split rail fences that do not extend
forward of the rear building line of the dwelling, do not impede or interfere with the proper
drainage of any drainage swales or other drainage or storm water related facilities, and are not
more than four feet (4') in height or such lower maximum height, if any, permitted under the
applicable codes or ordinances of the Town of Middletown; after obtaining prior written
approval of the Architectural Board.

AugustinD
Posts: 3,698

Posted:

My opinion:
The rule, written or not, violates the covenants. In the extreme, I do not think a court would enforce this rule.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

You say your Declaration says, among other things, Split Rail fences only. That does not define material, color, number of rails, etc. I say the BOD can make Rules & Regulations clarifying material, color, number of rails, etc. as you seem to have done. R&R's cannot override Covenants nor Bylaws but they can define things.

Though BOD can set so and so rules but they, or a later BOD, can also change them. In your case your Docs say Split Rail so many type fences are eliminated from the get go thus no chain link fences............LOL
+

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 07/30/2021 12:10 PM
My opinion:
The rule, written or not, violates the covenants. In the extreme, I do not think a court would enforce this rule.

Thanks. That is my fear. We actually have several items like this, but going the opposite direction. That is, the ARC has allowed residents to build and place structures on their property which violate the covenants. They are consistent in their application of their made-up rules, but their rules are, nonetheless, made up and not based on the covenants.

We've gone three years like this, so I believe I need to convince the developer to make a few tweaks to the declarations that will make them consistent what what we've been enforcing. My understanding is it will be easier to change these while we are still under developer control.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 07/30/2021 12:52 PM

Posted By AugustinD on 07/30/2021 12:10 PM
My opinion:
The rule, written or not, violates the covenants. In the extreme, I do not think a court would enforce this rule.

Thanks. That is my fear. We actually have several items like this, but going the opposite direction. That is, the ARC has allowed residents to build and place structures on their property which violate the covenants. They are consistent in their application of their made-up rules, but their rules are, nonetheless, made up and not based on the covenants.

We've gone three years like this, so I believe I need to convince the developer to make a few tweaks to the declarations that will make them consistent what what we've been enforcing. My understanding is it will be easier to change these while we are still under developer control.

FWIW, I agree with your concerns and your plan for addressing these problems.

Your HOA's Delaration may have specific verbiage on the subject of amendments by the Declarant. I think this is worth reviewing.

Of course, where the ARC granted approval where approval should not have been granted, and an owner put up a structure at some expense, problems are likely to arise.

BenA2 (Texas)
Posts: 1,273

Posted:

I think the rule only violates the covenants if you allow the fence to extend forward of the rear of the dwelling. As for restricting color, material, etc. that depends on the laws of your state. As someone mentioned, guidelines can sometimes clarify such things if they do not violate the covenants but in some states that is not true. In Texas, for example, I do not think you could clarify anything that is not clear in the covenants. That is based on a court ruling that essentially says ambiguous covenants are not enforceable.

It is always better to talk to an attorney in your state when deciding to enforce something that is not clear.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By DavidG45 on 07/30/2021 12:52 PM

Posted By AugustinD on 07/30/2021 12:10 PM
My opinion:
The rule, written or not, violates the covenants. In the extreme, I do not think a court would enforce this rule.

Thanks. That is my fear. We actually have several items like this, but going the opposite direction. That is, the ARC has allowed residents to build and place structures on their property which violate the covenants. They are consistent in their application of their made-up rules, but their rules are, nonetheless, made up and not based on the covenants.

We've gone three years like this, so I believe I need to convince the developer to make a few tweaks to the declarations that will make them consistent what what we've been enforcing. My understanding is it will be easier to change these while we are still under developer control.

David

Typically the Declarant (developer) has the power to change Declarations without owner approval. Our Declarant actually appointed an Owner Advisory Committee (I was on it) and one task was to review our Covenants/Bylaws and make suggested changes. We suggested 5 and he changed all 5.