Quote:
Posted By CathyA3 on 08/04/2021 4:19 AM
Posted By CarissaM on 08/03/2021 1:25 PM
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Do the homeowners who have a screen and no fence/wall now need to get a fence/wall based on the current statement? Is it reasonable to assume that a screen enclosure is, in fact, a wall?
Just a comment on this part:
Generally when CC&Rs or rules change in a way that makes some previously compliant feature now a violation, the board will grandfather the feature (with the agreement that it will be brought into compliance when the feature is modified or replaced). This is often due to the expense involved for the homeowner.
This approach makes sense when the violation involves esthetics: different community colors, different styles of fencing, etc.
However, when you're dealing with health and safety issues, it's less appropriate to grandfather. Insurers and the law are probably going to go with current standards. So while it may cost a lot to replace an older item, it will also cost more to keep the item and deal with potential fallout from it.
So as with many HOA/COA questions the answer won't be totally black and white, but you generally won't go wrong if you err on the side of safety and reducing liability risks.
(FWIW, I consider a wall to be solid, while a fence can have gaps in it. Can you shoot a bullet through it? Or can a sufficiently determined person or critter get through it (not around it, *through* it)? Probably not a wall in my book, so I'd view screening as a fence but not a wall. I agree with others that it's ambiguous.)
Just to clarify if this isn’t clear, we are at the part where the attorney said here’s what I would change, and he recommended the reference change from wall to screen. He said if you don’t change this you have homeowners in violation and you have to enforce all the CC&R’s. And this is just the first one. There were several CC&R’s that the board overlooked across the neighborhood and I guess it’s not until a Board is enacted that follows the declarations that it becomes a problem.
So nothing has changed, we just have a better understanding of the CC&R about pools and now recognize some homeowners are not in compliance.
But safety is a concern to be considered beyond going to homeowners who built in this development or added pools in a prior BOD time and were either approved or not required to add a fence because of a lax board, ambiguous terms or even total disregard for the declaration.
And this is the first of several, we also have a “No Boats or RV’s visible from the road” and there are at least ten homeowners with a visible boat/RV or even both. Again, we tried to amend the CC&R to allow boats/RV’s provided they were behind a 6’ privacy fence. But we didn’t get the votes. So here we are, with CC&R’s to enforce, homeowners who have been allowed to skirt the CC&R and a board feeling conflicted. We, as a board, agree we are OK with boats behind a fence and the community obliges that. But it is wrong and it opens up for a homeowner to cry selective enforcement.
I just don’t know if this stuff is worth it, I mean, it’s been going fine just the way it is. We haven’t had a homeowner with a problem about a fence around their screened pool and we haven’t had a homeowner come forward with a problem about a boat/RV. I’m just wondering if the board and the homeowners have been ok with things the way they were, why are we fine tooth combing our CC&R’s to enforce violations? I wonder if we can’t just go status quo until someone raises their hand and says, my neighbor has a screen enclosure and it’s not fenced in and I have a two year old and I’m concerned. Or another says my neighbor has an unsightly RV and I want it out in accordance with the CC&R’s.