Can HOA force you to contruct a fence/anything?

Started by DanW16 • 11 replies • 392 views

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DanW16 (Texas)
Posts: 4

Posted:

Hello HOA Talk Members:

We are considering purchasing a property in a new development and noticed that the CC&R's have a stipulation that only applies to a handful of Lot(s). The stipulation states that the purchaser of said Lot(s) is required to construct a 6' wooden fence within 30 days of occupying the property. The CC&R's do not provide a rationale for the requirement. I would like to know if a HOA in the state of Texas can "force" a homeowner to construct? I have seen CC&R's that require owners to maintain existing features but never one that forced you to build as a condition of acquiring the property. If possible, I would welcome any references to Texas Property Code, Chapter 202.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Is this a lot or is it a newly built house? If it is a lot with no house, that may be something to do with safety or theft. Also lets people know it is purchased.

Former HOA President

ElleN (Idaho)
Posts: 4,420

Posted:

Dan, as it looks like you are aware, TPC 202 says CCRs and a HOA cannot prohibit the construction of perimeter fences intended to serve as a "security measure." As I expect you are also aware, the CCR you mention is not doing this.

Because this is a new development, then you can ask the declarant for a waiver of this CCR. Sometimes to sell lots and homes Declarants do have the legal right to issue such a waiver. All parties should get the waiver in writing. If the Declarant refuses, then the covenant is what it is. I do not see anything inherently unlawful in such a covenant.

CathyA3 (Ohio)
Posts: 6,299

Posted:

There is likely some rationale for the fencing since it sounds like it may be functional rather than decorative (eg. impaired lot, protecting an easement, or adjoining property has some protections). Before asking for a waiver, I'd ask about its purpose - you may decide that you want the fence after all. If you do request a waiver, get it in writing.

Despite some of the popular HOA memes floating around, there can be solid reasons behind some of the things they do. :-)

WendyM5 (North Carolina)
Posts: 1,522

Posted:

well I know this is probably too obvious. but if only a few of the lots have this issue, why aren't you just buying a lot that does not require it???

vis ta vie

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Do these lots surround any storm drains?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Is this a Perimeter property? That would make sense if there has to be a fence between the back of the property and a road/neighboring property. The houses that line across the Major road to the HOA have to have back fences. That is for sound and privacy reasons. It separates the HOA from the "public" access. The internal houses don't require as much.

Former HOA President

DanW16 (Texas)
Posts: 4

Posted:

Thank you, ElleN. I agree with you that it is important to understand the “why” behind the amendments that impact these Lots. Once we have that information we can determine if there is a reasonable path forward, including a waiver or negotiating with the Builder on the construction of the fence.

DanW16 (Texas)
Posts: 4

Posted:

DanW16 (Texas)
Posts: 4

Posted:

It is an interior perimeter property, however, the amended CC&R’s only address 6 of about 50 perimeter homes. I plan on speaking with thr Declaranr of the association to understand the rationale.

LetA (Nevada)
Posts: 2,679

Posted:

The short answer is YES. You signed a binding contract when you purchased your home to agree to all the terms and conditions to the CC&R's.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

By voluntarily entering a sales contract - and acknowledging the terms of the sale - I would plan to install the fence and would not sign a contract until seeking a waiver. If you're buying this home and expect to immediately enter a "fight" with the developer, you'll go insane and it's not worth it. It is interesting that the developer is pushing the cost of the fence onto the homebuyer under the sales agreement. Cheap way to keep the house priced lower.

It is worth asking the developer about this.

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