4-Foot Vs. 6-Foot Fence

Our HOA recently changed the height allowance of our fences from 4-foot to 6-foot. I'm really confused. First of all, our bylaws have no mention of fences at all except to say they should be in the rear of the property and kept in good condition.

In August 2007, the board handed out a rule book. They are following this rule book and I'd like to know if this is legal. I visited my local courthouse and the bylaws have not changed since the original version of 1975.

I recently contacted our PM informing her of a homeowner who erected a 4-foot fence; not 6-foot. I explained that I was not complaining about it, but wanted to do the same. I feel it's ridiculuous to suddently require a 6-foot fence since all, and I mean all, of the fences are 4-foot. I would prefer to see over my 4-foot fence as opposed to living in Fort Knox with the 6-foot. I don't know why this change came into effect. I must have missed that meeting.

The PM is now asking me to give her the address of the offender and they will be forced to take it down; which personally, I don't feel is my job. The PM informed me that she cannot file a complaint, only homeowners can. I'm not willing to do this considering the past experience I've had with harassment by a neighbor I complained against. I also don't think it's fair that if "I" don't file a complaint, the homeowner gets to keep their 4-foot fence and I am forced to put up a 6-foot fence.

That was my question. I was at the county office and in the history of our HOA, there has never been any amendments filed with them. It is the original bylaws from 1975. So can they enforce this? Upon hearing of the change from 4-foot to 6-foot, I was informed that a homeowner wanted a 6-foot. That's about the extent of it.

Perhaps the rule is intended to mean the MAXIMUM height of the fence (which makes more sense to me). In this case, changing the rule from a 4' fence to a 6' fence simply means that fences can now be 2' higher than before. Of course, older, 4' fences still comply since they are not over 6'.

Denise,

Grandfathering applies only to those fences already built when the new rule went into effect. Regarding the h/o who erected a 4' fence after the new rule: had they already received a copy of the new rule b/4 they built the fence? Is it the type of fence that would have to be completely torn down and rebuilt? Here in AZ we have block walls, so it would only mean adding a few more rows of block.

I don't know if this would apply for the OP, but some areas do not allow fences that border common area walkways to be over 4 feet. Somebody could easily hide behind a 6-foot fence and pose a threat to people walking on the path.

Denise said: ". . .as opposed to living in Fort Knox ."

Heeey! I Resemble That Remark! I live about 20 minutes from Fort Knox!! LOL (joking with you -- I know what you are trying to say!)

Denise, as to your question about the president being the one responsible for reporting violations,as a matter of fact, generally, ALL homeowners are responsible for reporting violations. Some simply choose not to with the "live and let live" mentality, even though continual ignoring of the Deed Conditions, Covenants, and Restrictions could potentially erode them to the point of them being impotent.

Granted, if one is a board member, then reporting violations that are KNOWN to you, or SHOULD BE KNOWN to you, is one of a board member's fiduciary responsibilities to the governing documents.

I'd also like to make sure you are looking into the proper documents. Several times you have referred to looking at the "bylaws" of your HOA and nothing in the bylaws addresses fence height.

Just to be sure you are looking in the right place, in MOST HOAs, the documents that govern more specific issues of each lot and the homeowners' responsibilities are actually in the HOA's Deed Conditions, Covenants, and Restrictions, sometimes just referred to as "deed restrictions," sometimes as CC&Rs for short.

The "Bylaws" GENERALLY address how the HOA is governed, who governs it, how amendments are made, how elections are held, that sort of thing.

So you might want to make sure you are looking at the proper set of documents that govern the Dos and Don'ts of the Homeowners.

Denise the BOD probably has the right to change the rules concerning fences. If the CC&R's specify that the fences must be four feet high and made of wood then the BOD can't change that unless they amend the covenant or the law requires them to i.e. PA passes a law banning wood fences or requiring a height change. If all it says is fences are allowed but must be in the rear of the house then the BOD is within its rights to set the standard or amend the standard from time to time as long as they keep them in the rear of the home.

Have you formally applied to the BOD or ACC for a four foot fence and were turned down or are you just relying on what the PM said? Even if they turn you down you can apply for a variance. Also I would check you local zoning laws to see if there are any standards for fences in your area

When I went for my college orientation tour we were shown a women's dorm with a sturdy three foot high brick wall surrounding it. We were told that a wealthy former alum had left money in her will to build a new women's dorm with the stipulation that it be surrounded by a 10' brick wall or no money. They built it per her wishes only they built seven feet of the wall below ground level; maybe that would work for you.

Denise,

CCRs means "covenants, conditions and restrictions". If your deed says there are restrictions on the property there must be a document outlining these restrictions. In most instances this document is called the CCRs. Perhaps yours is called something else, but you certainly should have one. If you do not, then you should ask the BOD for a copy. Its not something made up by the board, but rather a document prepared by the developer and recorded with the County recorder.

And, yes, you definitely should not build the fence without first getting approval from the architectural committee or the BOD. They may have a form to use or not; whatever the procedure, you should follow it. They will inform you of what height the fence must be.

This is the outline of Amended Trust Deed

ARTICLE I - DEFINITIONS
Association
Charges
Lot
Member
Open Space
Owner
Person
Plan
Trust or Trust Document
Trustee
ARTICLE II - MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Membership
Voting Rights
ARTICLE III - PROPERTY RIGHTS IN THE OPEN SPACE
Member's Easements of Enjoyment
Extent of Member's Easements
ARTICLE IV - MANAGEMENT POWERS OF THE TRUSTEE
ARTICLE V - COVENENTS FOR ASSESSMENTS
Creation of the Lien and Personal Obligation of Assessments
Special Assessment for Capital Improvements
Special Assessments for Maintenance Restoration and Repair
Purpose of Assessments
Creation of Lien
Effective Non-Payment of Assessment
late Penalty
ARTICLE VI - USE OF THE PROPERTY
General Restrictions
Additional Rules and Regulations
Enforcement Rights
ARTICLE VII - PARTY WALLS
General Rule of Law
Sharing of Repair and Maintenance
Destruction by Fire or Casualty
Right to Contribution
ARTICLE VIII - ARCHITECTURAL CONTROL
ARTICLE IX - GENERAL PROVISIONS
Audit
Insurance
Restoration After Casualty
Duration and Amendment
Enforcement Provisions
Severability
Owner's Obligations

The is the Outline of the Amended Bylaws

ARTICLE I - GENERAL PROVISIONS
Name
Office
Seal
Trust Deed
ARTICLE II - DEFINITIONS
Association
Bylaws
Common Area
Dwelling Unit
Lot
Members
Owner
Properties
Trust Deed
ARTICLE III - MEETING OF MEMBERS
Annual Meetings
Special Meetings
Notice of Meetings
Quorum
Proxies
ARTICLE IV - BOARD OF DIRECTORS
Composition and Term
Nomination
Election
Resignation and Removal
Vacancies
Compensation
Meetings
Quorum
Action Taken Without a Meeting
ARTICLE V - POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Powers
Duties
ARTICLE VI - OFFICERS
Enumeration of Officers
Election of Officers
Term
Resignation and Removal
Vacancies
Multiple Offices
Duties
ARTICLE VII - FISCAL YEAR
ARTICLE VIII - BOOKS AND RECORDS
ARTICLE IX - ASSESSMENTS
ARTICLE X - INDEMNIFICATION OF MEMBERS, OFFICERS AND OTHER AUTHORIZED REPRESENTATIVES
Partial Payment
Presumption
Definitions
ARTICLE XI - AMENDMENTS

Regarding the Fence, I received a document after the handbook was distributed (which required 4' fences) "Addendums to "________ Acres Homeowners Association Amended Trust Deed" (this was never filed with the courthouse) Fences shall be no higher than 6 feet and made of wood or white vinyl.

I discovered at the board meeting last night, the fence height was changed because a board member requested it. To answer your questions, the board voted to enact it; according to them, homeowners don't having voting priviledges except to vote in board members. The handbook does not describe a procedure to change it. The handbook does state, These Rules and Regulations do not supersede or amend any provisions of the Amended Trust Deed or Bylaws of the Association (the "Documents"), but are to augment, detail and interpret them.

Thanks for all your help!

Tracy,

As I stated before, the handbook (adopted 08.22.07) states 4' fences. Recently, we received Addendum from 4' to 6'. Since all of their new rules are not filed, can they still enforce this rule and any and all rules that do not follow the bylaws that were filed?

About the "special meeting" it states members may be called by the Board of Directors, or upon written request of not less than 25% of the members of the Assocation. So I should perhaps get a petition of 25% or more of the homeowners requesting the fence height be changed back to 4' foot?

Also, I just saw this "Notice of Meetings". Written notice of each meeting of the members shall be given by the Secretary by first class mail, postage prepaid, not less than 30 days or more than 60 days in advance of the meeting, setting forth the purpose of said meeting. The board is not following this practice. Notice of meetings are posted on a bulletin board at our mailboxes with no mention of the purpose of said meeting.

Thanks Again!

Denise,

The amended deed of trust sure sounds like what many of us refer to as the CCRs. This is where you go for architectural control and other restrictions. I noticed a secion titled "additional rules and regulations"; this is most likely the provision that gives the board the authority to adopt additional rules (other than those contained in the amended deed of trust). Check this out to see whether or not a vote of the members is required; most often NOT. And, as Michele pointed out, the rule for fences says "not higher than" 6' which means it can be any height as long as it isn't higher than 6'. If the board is penalizing anyone who doesn't have a 6' fence then they are short on reading comprehension! Send in your request for a 4' fence; you should encounter no problems. But, if you do, then just show them the rule and ask what "no higher than" means! Just make sure you go through the proper proedure before building the fence. I'm curious to know what type fences are being built.

Denise,

The only rule they have to “file” is the amendment change to the deed restriction. As others have pointed out your deed restrictions allow the board to make additional rules . . . but it appears that a 4’ fence is allowed and the deed restriction/amendments (after filed) trump all “rules”.

So it’s a matter of how to convince your board of that. If you can talk to them great, if not we have to explore the other options. But first can you please share with us what, if anything, the original deed restriction says about fences? Thanks.

Denise, Glenn has a great point. If this fence height change is now only in your new "rules", then it really can't be enforced. A Rule and Regulation can not "change" the recorded documents, only clarify them. The Heirarchy of documents remains clear, regardless of what state you live in. And Rules are at the bottom of the heirarchy.