HOA Fence Height

If I were on the board, I would want to know if the covenants say anything at all about the possibility of the HOA approving a "variance" from the covenants. Can you please check yours and see?

Otherwise, conditions have to be extraordinary for the board to lawfully be able to violate the covenant you described.

Be aware that the courts treat covenants like contractual terms. When you bought into this HOA, supposedly you knew of this covenant and agreed to it. Now you have a contractual-like obligation to abide by it.

Do understand that if the board approves this, other owners, whose circumstances may not be extraordinary, can ask for similar variances. If they are turned down, the perception will be of unfairness.

If the fence could still be seen from the street, even if it bumps up against one that's noisy, the HOA may still have an argument. Then again,the CCR says "all streets" - could there be an argument that all means all, even though it's doubtful anyone would spend a lot of time on a street with lots of businesses and trucks.

Then there's the question as to whether the HOA rule trumps thie city regulation. Usually it doesn't unless the HOA rule is tough than the city or country rule and/or the city rule applies to House established after a certain date.

Bottom line, you'll need to speak to someone from the city agency that issues the permit and a private attorney (most of us aren't attorneys and what's true in your area may not be the case in ours). You might also try to speak to the board and invite them to yourhome to see what you're seeing and hearing - they might be willing to issue an exception. If you have neighbors who have the same problem, perhaps all of you can approach the board.

You basically have stated the fence is apparent and visible from streets. Unless you have language to the contrary, I would interpret it to mean all streets.

I agree Declarations should be careful about the wording here. Because the typical unskilled HOA board could certainly abuse any provision allowing variances.

Here I think it is possible that the road was once low traffic. Now it is high traffic. If the Declaration allows a variance, it should be considered. If the Declaration does not allow a variance, then for the sake of home values, the board should still look at the details closely; see if things have changed since the Declaration was first written; and give due consideration to all the facts and law on variances.

You posted that the covenant says, “all fences erected on areas readily apparent and visible from streets shall be six feet.”

The Board has made a judgment call about what "readily apparent and visible from streets" means.

When a "land use covenant" is vague and/or ambiguous, nationwide the case law says the covenant is not enforceable, on grounds that case law favors the "free use of property."

Is this covenant vague and/or ambiguous? Maybe. The HOA and you would have to take your dispute to court to find out.

At the trial court level in particular, what the court will say is a role of the dice.

If you want a draft of a letter that you can send to the board, that just barely hints that you might sue, ask.

Subsequently you would have to elevate your demands and possibly lawyer up.

Google AI Answer to "Can a covenant that is vague be enforced?":

No, a covenant that is vague or ambiguous is generally not enforceable. Courts prefer clear and specific language in contracts, and a vague covenant can lead to conflicting interpretations and difficulty in determining whether a party has breached it. A court will likely refuse to enforce a covenant if it's too ambiguous to provide objective standards for compliance.

Elaboration:
Vague language in a covenant, such as "maintained in a clean and sightly condition," can be open to subjective interpretation, making it difficult for courts to objectively determine if a party has violated the restriction. For example, what one person considers "clean and sightly," another might not.

Courts generally interpret covenants as contracts, and they will strive to give effect to the parties' intent. However, if the language is unclear, the court will likely resolve any ambiguity in favor of the free enjoyment of the property. This means the court may find the covenant unenforceable if it's too vague to be practically applied.

Key takeaways:

Clear language is crucial:
Restrictive covenants should be drafted with precise and unambiguous language to avoid future disputes.

Vague language is problematic:
If a covenant is too vague, it may be considered unenforceable.

Court's role:
Courts prefer clear and specific language in covenants and will generally not enforce vague language.

Example:
A restriction stating "the home must be similar to other homes" without specifying how is likely too vague to be enforceable.

Each of the key points in the AI answer has a link.

I agree with this AI Answer.