"required" fences and HOA

It's very simple: No fencing allowed.

And if you think you have 75% who would agree,then go for it.

I'm pretty sure something like that would not pass in our subdivision, but then, we don't live on a golf course.

Michele's advice is elegant in its simplicity as to yard fences.

As to pools, these are no doubt required by the local zoning folks, and that would trump anything in your docs.

As to the current fence, probably can't get rid of that via an amendment. But you could approach the owner with an offer to remove it and maybe toss in some landscaping as a privacy replacement. Unless, say, owner has it for pets, in which case owner might not bite (pardon the pun). But it couldn't hurt to ask.

Thank you to those of you have replied. The lots are actually closer to 1/4 acre, I believe; most are around 100' x 120', so most back yards aren't all that large.

The full text of our CC&Rs pertaining to fences states "No fences shall be erected or maintained until or unless plans and specifications have been submitted and approved in writing by the Declarant or its successor or assignees. Any such fence shall be of a high quality wood, stained or painted on both sides, and of a height not greater than five (5) feet. If such fence plans and specifications are not disapproved within thirty (30)days from the date submitted, they shall automatically be deemed to be approved."

We realize that the house with the current fence would be grandfathered. The fence was put up by a previous owner before the subdivision was turned over to the HOA. We're going to be talking with the current owner this Spring because he has not been maintaining the fence. Hopefully, we can convince him to take it down.

We tried, at the last annual meeting, to change the CC&Rs to allow for additional construction materials options for fences, but the measure failed to garner enough votes to pass. A number of the homeowners said they voted against it because they want to discourage fences. So now we're exploring actually banning future fence construction.

As far as delineation between the lots and the golf course, all we have is the out of bounds markers. Golfers are given a temporary easement to enter any property to retrieve a wayward golf ball. They cannot, however, play from the yards.

GaryT,

I doubt the current fence is "grandfathered"..I have never seen that in any docs. If the builder allowed it ask to see if this was in writing and ask them to provide a copy to the board.

Robert,

I'm not sure we agree. I doubt there is anything in their docs that say anything can be grandfathered. IF the owner can provide written proof that this was done while the builder was in control they should provide it to the board. Since this is the second owner I doubt they have it and must adhere to whatever the covenants say.

Ellen,
I agree there is no evidence that shows who it was approved by. However, if it is not there, they have not seen fit to remove it and my thoughts were they may have to grandfather it at sometime in the future. I understood you to mean that there is a possibility it may have to be grnadfathered, whether you agreed or not.

I expect also there has been soom contact between the Board and the fence owner about the condition of the fence and they have seen fit to allow the fence to stand up to this point. Might be a little awkward to now try and get rid of fence because they want to write changes, but no matter, I suppose I read it wrong and I withdraw my remark.

Of course, what George says only applies if the h/o were to take the HOA to court. Depending upon what the HOA wants the h/o to do, and the cost of doing it, most likely would determine if the h/o would want to get involved in a costly court case.

Also, I don't believe Ellen is correct in saying if the docs do not mention grandfathering it cannot be done. There are usually many things left to the discretion of the board that are not specifically spelled out in the docs.

Robert,

FYI. . .from Law.com. Note the interesting explanation of the term.

grandfather clause
n. 1) a clause in a statute or zoning ordinance (particularly a city ordinance) which permits the operator of a business or a land owner to be exempt from restrictions on use if the business or property continues to be used as it was when the law was adopted. Upon passage of the statute or regulation, the specific property may be referred to as "grandfathered in." Example: the city passes an ordinance which does not permit retail businesses in a particular zone, but any existing store can continue to function in the area, even with new owners. However, if the premises stop being a retail outlet then the grandfather clause will lapse. 2) among the state constitutional amendments passed by southern states in the late 1800s to keep blacks from voting, "grandfather clauses" denied voter registration to people who were illiterate, who did not own property or could not pass a test on citizenship obligations, unless their grandfathers had served in the Confederate Army. Such laws are now unconstitutional.

From fences to grandfather clauses. . . . Oh, how the threads wander.

From my experience and training "grandfathering" or "grandfather clauses" is a descriptive term, not a legal term. Because of that, were I drafting a rule, regulation or covenant, I would not use it. Instead, I might write a rule containing language similar to this:

Existing fences, or fences already approved, but not completed are exempt from this regulation. However, should repairs or reconstruction on more than 30 percent of the lineal dimension of such a fence be undertaken, then the entire fence will be brought into compliance with the standards contained in this regulation. The board of directors has the authority to interpret this regulation and to make reasonable exceptions in its sole judgment.

In my neighborhood, we have never had a problem with fence issues (except one mistakenly encroaching on a common area). The fence rule states materials, design, finish and maximum height. It is written without exceptions or any language which empowers the board of directors to grant exceptions. Nevertheless, unlike some people who demand that every rule be enforced to the letter by the board with out exception, our members take a more reasoned, common sense approach to rules. In their wisdom, the board granted a single common sense exception (without explicit authority), and rightly so, to permit an 8 foot privacy fence despite the 6 foot limitation in the rule.

George,
I think that many of us have a problem with accepting the statement of "The Board has the right to make exceptions at it's sole discression." This still leaves each individual Board the ability to interpret the covenants as they see fit, which leads to unequal allowances and unequal enforcement.

George,
Thanks for your input.
I assume you have read Marys' post.

But I think you innuendo about how these threads wander is off base here.

The subject about the fences included a fence that was erected before present requirements. You say it is correct to "exempt" these fences, sounds alright to me, especially from Mary's posting.

But I am confused because down the response you speak that you never had any problems with fences because your fence rules are written without exception or any language which empowers the board to grant exceptions.
Further on you say your board acted with common sense and granted an exception (without explicit authority), and rightly so.

Now I am not dense enough to not notice that a lot on common sense goes into the management and day to day operation of any organization or business, and it has to be this way, otherwise nothing gets done.

But, how can the board circumvent their own requirements where they explicitly write words to keep them from doing what you say is right.

Which brings me to the end, and that is, there is a lot of stuff going on in HOA's that defy description and defies absolute control and the best you can hope for is to watch the store and have the recorders and video cameras handy. I am not sure I have run into a crook yet, but I have run into several that will not put their personal agenda behind the health of the association.

I would think that if the Board were to enact new covenants that restrict fences, the owner who has a fence, regardless of if they installed it or if the previous owner had, would be allowed to keep their fence, but if they remove it, then they would be subject to the same rules of everyone else.

I would think the consequences would be great if you allow for new rules to begin retroactively. What if it was an expensive shed, or the Association changed the required grass.

I agree with strengthening the wording in any ARC and attempt to be very specific, as well as enforcing the new rules so they can settle with the residents.

If a law says that a pool must be fenced and a covenant says that fences are not allowed, then you simply can't put in a pool. Putting in a pool does not give one the right to go against the covenants unless some law (or ordinance) is written giving a person said rights. And I really doubt any law has such a provision. It opens too many doors and carries unintended consequences.

Consider that if such were true, and a covenant didn't have a fall back provision. Now a person has a right to put up a fence. But there is nothing in place to restrict that fence. From a pure logic standpoint the right would allow said owner to put up any fence they desired because there is no standard in place to protest the chosen fence.

When writing a rule it is always important to consider the consequences of the rule. For instance, a plain no fence rule has the consequence of no pools since one must typically place a fence around the pool.

This is not the forum for an extended discussion on the philosophy of the law. Yet, we keep running up against a lack of understanding of the purpose of law (rules, regulations, etc.). I will do the best I can foster understanding, but I fear it will not be sufficient for some.

Without debating the differences, let's assume that rules are the same as laws in a homeowners association.

What is legal and what is just are two different things. That is why we have a judicial system. Our legislative branch focuses on making the law, the judicial system focuses on justice.

In a homeowners association the board of directors fulfills the role of the legislative branch, the judicial branch and the executive branch of government.

A judge in a court of law has the obligation to ignore the strict interpretation of a statute, if such an interpretation leads to an unjust or undesirable result.

In addition, a jury has the absolute authority to refuse to convict a defendant should it believe, in its sole discretion, that a law is wrong or does not apply in a particular case, or would lead to an unjust punishment (even though they find the defendant guilty beyond a reasonable doubt). It is termed jury nullification, and it is a nearly sacred part of our system of justice.

No law or rule, no matter how finely crafted can apply to every conceivable set of circumstances. There will always be a situation in which the outcome of a strict application of a law/rule to a unique set of circumstances is unjust or undesirable.

Since there is no independent judiciary in a homeowners association, the board is empowered with the responsibility to interpret rules and to determine what action stemming from their interpretation is reasonable and just when the expressed intent of the rule would lead to an unjust or otherwise less than desirable or beneficial outcome.

It is not the sanctity of rule/law that is to be preferred in the interpretation or process of adjudication. It is the outcome of its application to a set of unique circumstances that is to be preferred. The purpose of a law/rule is to foster justice, not deny it.

We elect board members ostensibly for their ability to make reasoned decisions using their wisdom and intellect. Sometimes the electorate makes a mistake and elects an individual who has either ulterior motives or a manifest lack of wisdom and decision making skills. No amount of detailed rule making will over come such deficiencies.

What it all comes down to is that a board of directors should be empowered and expected to act in the best interests of the members in as the board interpret those best interests to be. It is not always in the best interest of the members to enforce rules and regulations without a regard to, or sensitivity for the outcome. The outcome always should be paramount over any rule.

Achieving justice and doing what is in the best interest of the members is not always consistent with a strict interpretation of a rule. A reasoned inconsistency in the application of a rule that leads to a just or desirable outcome is preferable to a consistently applied strict interpretation that leads to an unjust or undesirable outcome.

As Emerson observed in his essay, Self Reliance, "A foolish consistency is the hobgoblin of little minds." It is only little minded people who insist on consistent strict interpretation of rules and laws over just outcomes.

I am sure people here will want to pick this post apart in order to disagree with it. Their position has been, and will be, essentially that (1) strict interpretation of rules is in the best interest of the members and (2) unthinking consistency is preferable to just outcomes. Such a position runs counter to the fundamental notion of the legal system in our society. If it were true that we are a nation of laws and not of men, then the judiciary would not have the power of judicial review as first expressed in Marbury v. Madison that has become an essential part of our notion of separation of powers and checks and balances.

Although my best instincts tell me to leave well enough alone, my baser instincts drive me to comment. I apologize in advance for allowing my baser instincts to prevail.

I was educated in an academic tradition much different from the common American system of higher education. In most universities one is assumed innocent of stupidity until proved guilty. In the university which I attended one is assumed guilty of stupidity until proved innocent. It is the difference between the English system of justice (common law) and the French system of justice (Code Napoléon). Indeed, the law school which I attended prided itself on the number of its graduates who failed the bar exam on the first round. The school viewed its function not to train lawyers, but to educate students in the law. I was taught not to ask "how," but rather, to ask "why?" I was not taught common statistics, but rather, Bayesian statistics.

I have learned not to take anything said in open discussion personally. I have learned that ad hominen responses are signs that the opposing side in a debate knows it does not have the facts to support its case. They serve to distract the discussion from the merits of the arguments. Some of my staunchest allies in legislative battles have previously castigated my opinions from the floor.

I learned that one does not gain knowledge by expressing one's uninformed opinion. "An open mouth equates to a closed mind." Yet, in this forum there is much uninformed opinion masquerading as fact. A number of posters consistently offer opinions that show a lack of understanding of the issue at hand. They base their opinion upon anecdotal information or upon personal experience which is very often wrong. All it does is tend to perpetuate misinformation, rather than contribute to the advancement or dissemination of knowledge.

This uninformed opinion is particularly acute when it comes to questions that have legal ramifications in case or statutory law. In such instances, it does not matter what my opinion is (or any poster's opinion is, for that matter). What matters is what has been determined in the courts or legislatures. Before expressing an opinion, I should take the time to educate myself so that I can offer an informed opinion should I so choose.

I have sought to refrain from posting on threads to which I cannot contribute meaningfully in the discussion (particularly those that deal with "how" rather than "why"). While I may have an opinion, I refrain from expressing it, because it is an unformed opinion. Instead, I read silently and learn from others.

I would posit for discussion that many of the problems that homeowners associations have stem from (1) a misunderstanding of the role of governance and (2) the perpetuation of outmoded concepts. Admittedly, this bulletin board deals with problems of governance. Yet, I am nevertheless surprised by the large number of posts and threads that deal with boards of directors acting outside their scope of authority or in direct contravention of the governing documents. While I know differently, one could presume after reading the posts here that rogue activity is the norm, rather than the exception, for homeowner association boards.

There are several threads in which reasonable people may reasonably disagree, especially those that are based on equally valid, but differing perspectives. I find those most educational.

Mary,

You're wasting your time arguing this. I doubt ALL SEEING/ALL KNOWING correspondents understand that they are not All Seeing, nor All Knowing.

BTW, For the Record, I am not JohnM3. I am JohnK3. And I swore off non-prescription stimulants long ago. 'Cept for coffee.

Carry on.

And yet, this is something you practice quite often. It occurred more than once in this thread, I believe.


And my opinion is that not a lot of "uninformed" opinion occurs. Go figure!


And yet, if you look at the number of active posters and compare that against all known HOAs/COAs that exist in the country, one would understand very clearly that the posts and posters here aren't even on the radar screen regarding "norms."


Now on this we can agree.

Donna,

While the city, county and state codes have precedence you are making an error. What they will tell you is to either put up a fence, or fill in the pool. Now it is possible that some entity has written a law to protect your right to a pool. But I don't believe any state has. If so, please give a reference where the law states that an HOA can not prohibit a fence if you own a pool.

So the sequence goes that you put in a pool and are told to put in a fence. The HOA sues because you are contractually prohibited from putting up a fence. They then argue that you did have a choice. You knew you couldn't put up a fence before the pool was put in. Further you had a choice and could have removed the pool. Then you have to fill in your pool and remove your fence.

Yes, laws over ride covenants. But it is a fallacy to believe they grant a right when they only provide an obligation. And the laws regarding fences around pools are mostly written to make an obligation not a right. If you have a pool you must have a fence. But they don't give you a right to a pool when you can't otherwise have a fence. You signed up for the contractual obligation of no fence and chose to ignore that you couldn't put that up when you placed the pool. Too bad, fill in the whole.

Kirk,

City ordinances may take precedence, however, HOA covenants may be more restrictive. That being said, the HOA cannot allow something that is against city code and the HOA cannot disallow something that is required by city code. If the city requires a fence around a pool, the HOA must comply. But, as you say, that doesn't mean the HOA must allow the pool.

You folks have really gotten off the topic here, it seems. All I was looking for was information on how other associations were banning fences, and hopefully, some sample language we could use for our purposes.

As far as the grandfathering issue goes, the one fence we have was put up by a previous homeowner while the subdivision was under developer control. He approved the fence and it meets the letter of the CC&Rs. We're agreeable with letting it stand as long as the current owner takes care of it, but we'd prefer to discourage any further fences from being put up. The subdivision was turned over to the HOA in 2005.

Now, back to the language ussue -- can we state that "fences are not allowed unless required by local ordinance" in order to take care of the pool issue? Our CC&Rs specifically bans above ground pools but doesn't speak to inground pools. If it is so stated, what other issues might we inadvertently be opening up that might mandate fences?

Thanks for the input.

Gary Tiffany
Cherry Valley IL

Gary,
We have established by most that the current fence will have to remain due to the fact that it was installed during the Developers watch and it is of unknown documentation if it was approved or not.

Writing an amendment to ban all future fences should be simple in wording. No Fencing of any type allowed except.---Number one, I would get the wording from your town or city on their requirements for fencing around pools. Using that, then write simply that NO fencing will be allowed to be installed except fencing that is required by The city of xxxx per code,to enclose an inground pool. An application to the ARC will be required prior to installation to insure that the fencing meets ARC standards. Decide what those standards will be, such as , aluminum or wrought iron railed fencing, 4 or 5 foot in height, depending what the code is. Also include a color range such as black, white, bronze or whatever. You can dissallow wood or plastic because that will block the golf course view. Include-NO CHAIN LINK FENCING. I hope this gets you back on track.

When reading through these posts and realizing how much work has gone into trying to resolve this complicated issue, a couple thoughts occurred:

If I understand, this development is located along some fairways of a golf course. It has been stated that part of the documents allows access for any golfer to enter the properties to find errant golf balls.
Now, I don't know about you but that strikes me as rather pushy if not illegal. If the development is not part of the golf course then what right is there to allow a stranger to cross your private property. I understand this was all done before this fence problem/pool problem ever existed, but think about it. That right of the property owner that someone gave to allow trespassing seems a little weak. How about the Golf Club offering free pool memberships to those particular homeowners? Then the golfers could come on the owners property with his permission, the property value of that particular piece of real estate would increase because it carried the free swim membership. The club would and should allow any owner to expand their membership and maybe pick up some members and some cash.

Also, I suspect swimming pools are not big money makers for developers or golf course owners, but people spending money are.

Oh well!

I guess I don't talk plain. I thought I read that this golf course was not connected to the HOA, it was a private club. I suppose you are saying it doesn't matter as long as the property owner signed the agreement. What if one property owner don't sign? You mentioned this was a agreement not a legal order.

I think I may just have to call in a few card from my friend B. Obama and get this straightened out.

I just can't stand for some Yahoo making up some agreement that is going to be a life sentence for some poor little baby just born, and then grow up and buy a house and want to sunbath nude and some snowbird comes wandering through her back yard looking for lost golf balls. Normally that might be cause to call the cops for trespassing but no, this peeping tom says he is looking for his golf ball he lost three weeks ago.

Damn!!!!!

Gary,
Our courses are much the same and with much the same reading. For my money this is patently just wrong somehow. As I am sure this happens all over the country and it all stems from some lawyer manipulation of words to the temporary advantage of a developer that is probably going to be around long enough to sell and move on. Once the developer has done this the HO are stuck for life with conditions beyond their control. I do believe that one day all this stuff will be challenged in court, not because of anything I can think up but more because some other lawyer will do it.
Anyway, nothing like a shot in the dark. Speaking of:

If there is a clause that we all think to be solid about granting golfers unfettered access to our property with no restrictions, how can you build a fence that keeps them out, that will not allow them access? If you had a gate in your fence, would you have to give the golfer a key.

Just a mental exercise? Here, we have had countless broken windows pocked siding and of course injuries, and here as well as where you all come from, we explain it as that's just the price you pay. Also the developers Golf course, can go bust, as has happened in this area, and if the Homeowners don't suck it up and buy the course, this golf course can revert to weeds and wild animals, and that has happened in this area. Laws of the Coin.

MaryA1,

Actually, I'm going to pass your idea about view fences along to our ARC for consideration. The more I think about it, I believe our Board can set rules to somewhat restrict the usage of fences while still allowing them per the CC&Rs. We just have to tighten down how they can be used. That would certainly save us from the work of trying to pass a CC&R change. We still have about 22% of our lots under control of various builders (some empty lots, some spec homes waiting to be sold), and they generally won't vote (or refuse to vote) on matters like this. That makes it very difficult to get the required 75% approval of the lot owners for a CC&R change to pass.