Fence Approvals

I'm in a fairly new subdivision in Indiana. The Developer is still over the HOA and we have a management company running things. Or not running things as it may seem. In all honesty, you can't tell what kind of fences are or are not allowed in our subdivision.

I have read and re-read the covenants. They state that if a homeowner has a lot that is adjacent to a common area that they are only allowed to have a 4' picket fence.

That would be fine if that were the rule for everyone on a common area.

The problem is, I have found 7 other homes in my subdivision that have 6' privacy fences on lots adjacent to common areas. I went to the recorders office and got copies of plats and of all documents on file. The CCR's have not changed since put into effect in 2004. At least one of the homeowners, the one I've spoken with, got approval to build a 6' fence back in 2006 shortly after his home was built. He has the approval in writing.

I have stated this to the Management Company and sent them pictures of all of the other homes that have privacy fences on a similar lot to mine. I have been denied an approval for a 6' fence. I have asked for an appeal to the BOD and the Property Manager told me that she didn't think there was an appeal process. Though it states it clearly in the CCR's, which I wrote back to her with page and paragraph. Still haven't heard anything. Then I asked for the BOD's contact info. She said she could't give it out. So I searched online for Centex people and was able to find one.

I sent him an email explaining the situation and he replied letting me know that he would get with the Property Manager and find out if the other homes were approved. The email I got back from him said that they "may" have been approved based on incorrect information submitted by the homeowner. Either way, the fence was approved and they aren't using any discretionary reasoning which is allowed by our CCR's.

The two board members I've emailed with, are still citing the CCR's in their denial of my fence. I have yet to be given an appeal process with the entire BODs. Do they have a right to deny me the same rights that have already been given to other property owners in the exact same circumstances in our HOA?

MandiA,
You are between a rock and a hard place.
First, your Board is suspect because it is not an elected Board if the developer controls and turnover has not occurred.

Just from the looks of things, I would go to the court house and see how your association is chartered. I would find out all state and county documents that have been filed.
I would go to a board meeting and voice concerns. Something is not right here from the information you provided.

You seem capable and right minded and maybe that is a reason it appears you are not getting or have access to what you want to know. Look for any agreements between the Developer and anyone else. How many on your Board? Home many owners, do you have a web site, a newsletter, and Board publication. Why is your management company not being forthright and helpful.

What you want to know doesn't seem so difficult.

Do I detect you have a hint, there is a lot of things you can't explain and fences are just one of them.

Look for some basic required licenses or chartered or agreements that established your association. I will take a guess and say the management company to beholden to the developer and not the associations........find out.

I have went to the recorders office and have obtained everything that they have filed aside from some of the plats that didn't fit my first objective with the properties that I had identified.

The developer continues to add property to the subdivision through supplemental declarations filed at the recorders office each time we reach 72%, 75% is the magic number for homeowner turnover.

The CCR's only state three people on the initial board, and one of the ones that I've been talking with isn't even listed in the CCR's as part of the initial board yet he claims to be on it. Which is interesting.

They do not have board meetings. They do not have anything that the residents can actually be involved in or believe me I'd be there. There are no publications sent out from the PM except for bills and special assessments. There is a website that the PM created that includes a copy of the CCR's but all the dates and names are blocked off and some other things have been changed although nothing else has been filed.

There are other issues at play here like the Architectural Review Board also wanting me to build in Drainage easements on my property. That is also in our covenants as something that the town we live in does not allow us to do. But the ARB said I MUST go through them. So they are picking and choosing what they want to abide by.

The developer runs both the ARB and the BOD so an appeal would likely not change the outcome, but it is my right by the CCR's, and I expect that to be upheld.

They are now talking to their attorney after I told them that I would stop at nothing in making sure that everyone was treated fairly.

Mandi, like it or not you are being treated fairly.

The documents say you can't have a 6' fence, and so your request was denied.

Additionally, it would be extremely odd and exceptionally rare for a board member's name to be listed in the CC&Rs.

At any rate, Mary's comment is about the best you can expect. The other 6' fences may have been approved under faulty application, they may ultimately be torn down.

But the fair thing to do would be to abide by the deed restrictions that you agreed to abide by when you purchased your home.

The fair thing to do would be to acknowledge your role in the contract you signed.

Just sayin'~

These were not incorrect approvals. The homeowners submitted the necessary information, the ARB approved the 6' fences. There are no county or municipal laws prohibiting a 6' fence. 6' fences can be found all over our neighborhood in lots that don't have a common area adjacent and lots that do. This is not an issue of nonconforming to the neighborhood as the 6' fences are in the CCR's for lots other than mine.

The CCR declaration does state that the initial board be three specific people and can include two owners nominated by said board. I assure you I have no problem reading. I'll be more than happy to scan it in so you can see it.

The fact that the town I live in doesn't allow fences in drainage easements yet the HOA put up a fence around the entire development that is in a drainage easement is another statement of their lack of knowledge or disregard for anything that doesn't suit their purposes.

I live in "the designer series" which is different from the rest of the neighborhood of smaller, less expensive homes. Yet the CCR's cover all of us, we do not have a different set. So when I ask for approval that they've already given and I get denied, it is discrimination. Pretty much our entire area is zoned to have adjacent common areas.

Again, doesn't matter. Failure to enforce against others, or granting waivers in some cases does not make the restriction impotent. My guess is that there is a clause in your CC&Rs somewhere that states something along this line.


And you say here: "The CCR's only state three people on the initial board, and one of the ones that I've been talking with isn't even listed in the CCR's as part of the initial board yet he claims to be on it."

So the CC&Rs list these people by name? Again, that would be highly irregular and unusual. But if it does, it also apparently leaves open appointment by that board, so that may well be what has happened. Either way, it seems the one you should be talking to is actually the developer. My guess is you could probably get him to cave (if presented the right way with a slick strategy) the same way the others were able to.

Again. just a guess.


And it's also possible they did receive a zoning waiver or allowance. You're not supposed to cut down trees in a wetland here, but developers do it all the time by promising to put in trees hundreds of miles away somewhere. Then they get a variance. Eazy Peazy. Yet still makes me queasy.


No, it's not. But feel free to try that tack. It's frustrating, to be sure. And certainly doesn't feel fair. But it is what you were aware of when you accepted the CC&Rs associated with your lot. Sorry.

Mandi,

The fact of the matter remains that the CCRs prevail. For whatever reason, 6' fences have been built -- some perhaps with approval, others perhaps without. It doesn't matter, the board now has decided not to approve 6' fences. The law is on their side. This is not discrimination, no matter what section you live in -- designer series or trailer-park series! The fact that no other poster has agreed with you should tell you something. IMO, you should be complaining to the BOD that so many fences have been built that are in violation of the CCRs instead of asking to build one too. Like many mothers have asked their kids since the beginning of time, "If Susy jumped off the bridge, would you jump too?" You need to remember that by virtue of purchasing your property you agreed to the CCRs. If you didn't like the provisions that are contained in them you should have looked elsewhere. Others breaking the rules doesn't give you the right to do the same.

I found this today.

Schwartz v. Holy Cross, 83 Ind. App. 658, 665, 149 N.E.2d 699, 701 (1925):
Where the owner of a tract of land sells the same off in lots, with restrictions upon the use of the lots sold, he will lose his right in equity to enforce the restrictions against one grantee, if he knowingly has permitted other grantees to violate the same restrictions, the effect of which violation is to abrogate the purpose of the restrictions and alter the general scheme intended to be conserved by it. This rule is applicable whether the suit is brought by the original grantor or by one of the several grantees of land sold in accordance with the general scheme of the original grantor.

It applies to developers which is what my situation is.
To me, that says that they can no longer stop me from building a fence that they have already given others permission to build.

Yes. .
But it has been cited as recently as 2003. It was ruled that it did not apply in the case it was cited in because the HOA was run by homeowners and not the developer.

The case it was cited in is Nash Vs. Wedgewood Community Association Inc. 2003

Mandi,

The only way you're going to get your way is to go to court. And, if the case you cited is, indeed, case law then perhaps it could be used in a lawsuit to prove your case. In the court report it says the developer "knowingly" allowed -- can you prove he knows of these other fences or that he approved them? They may have been built w/o any approval at all. But the bottom line is, are you willing to go to court over this? IMO, it would be much better to just wait until the developer turns control over to the members and lobby the BOD to ask for an amendment to change the fence restrictions. It should pass with no trouble since there are so many violations of this provision. In fact you might want to ask the developer if he would consider an amendment now. If you decide to do this I would suggest going straight to the developer not the BOD. Explain the whole situation to him and even mention the court case you've cited.

Then that the direction you must go.

Best of luck to you.

BTW, here is the language which I was addressing, which may or may not have been language present in the case you cited:

ARTICLE V - GENERAL PROVISIONS

Section 1. Enforcement. Enforcement of these restrictions shall be proceeding of law or in equity, brought by an owner or by Developer against any party violating or attempting to violate any covenant or restriction, either to restrain violation, to direct restoration and/or to recover damages, failure of any owner or Developer to demand or insist upon observance of any of these restrictions, or to proceed for restraint of violations, shall not be deemed a waiver of the violation, or the right to seek enforcement of these restrictions.

Section 2. Severability. Invalidation of any one of these covenants by the judgment of court order shall in no way affect any of the other provisions, which shall remain in full force and effect.

And here:

Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners.

------------------

Sort of the "Catch-22" provisions. Your CC&Rs or other governing documents may contain similar language.

An update - I received an email yesterday.
"I have left a message for our attorney and have not had a response to your petition for a 6 foot fence that abuts to common area. I’m looking to see if there is a commitment to the city that requires us to uphold this restriction. If there is not a commitment we will consider allowing fences along the common area. If there is a commitment to the city then we will have to look at other options. Until I know the answer to this question I cannot move forward. I will call attorney again and let her know that this is of urgent matter. I will notify you when I find something out."
This came from the Property Manager.

I've already reviewed the town regulations and there is no regulation on height of fences on residential property unless its a corner lot.

I'm glad I wasn't intimidated by the HOA or the members here.

Maybe to some of you a fence isn't important. But when you have 3 dogs and 2 cats that are family, you want to be able to protect them. A 4' fence would allow anyone to jump over or reach over it. So yes, I would give anything to protect my family as I would think most of you would.

Lets not sit her and pretend like most of us have a real choice of living in an HOA or not. If you want a new home, a short commute, and neighbors around, you have to live in an HOA.

Mary,
Again, nice summation Mary.
I'm with you on hoping this solves more problems that it creates.
However, from the convoluted picture of her association Mandi paints, I expect there has been a long period of entrenchment and people are starting to rattle the cage. There sure seems to be a lot of organizational connections that are not clear to the point I, for one, don't kow who answers to who.
I'll take a guess and say, any close scrutiny of these organizations, is going to be looked upon with a jaded eye. I hope we hear more from Mandi.

Dwight, I think most will agree with your position and I really think Mandi does also. She is angry about something but I am not sure it is about the fence. She seems very capable, and has proven it, by the response from the Board she received. I expect that will shortly be come a non-issue and covenants will be be changed.

I cannot imagine Mandi going into a HOA with her eyes closed. She is just too smart for that. Maybe she is finding out things are not as she expected them to be. Maybe she is right and things should be as she expected them to be. But no matter, I hope folks reading all this takes away the constructive or informational matter that posts like these generate. Another example of a basic right that people have to question the status quo.

Here is another possible solution depending on exactly how the CCR's are worded. Why not ask for a 6' fence back from the property line that abuts the common area? We don't know the lot size but it isn't unusual to have a fence to contain dogs/pool/etc that ISN'T on the property line.

Maybe Mandi can clarify if 6' fences are prohibited from lots that abut common areas OR if it is that 6' fences are prohibited that abut common areas.

This observations raises a subtle point of law, perhaps too subtle for most here. Is a covenant contract made between an individual owner and the association, or is it made between an individual owner and all the other unit owners? Alternately, do restrictive covenants imbue a notion of fairness or equality that does not exist in actuality.

If a store clerk (with management permission) extends an employee discount to a friend, otherwise not qualified for such a discount, does that violate the implicit contract of a posted price--meaning, I should be given the same discount, even though I am not a friend of the employee? Isn't this deliberate discrimination.

Courts have generally held that restrictive covenants are a contract. But does that contract, absent specific language, give rights to every other unit owner in terms of equality fairness?

It may be better to consider restrictive covenants more along the lines of municipal zoning laws and regulations. In most (if not all) municipalities, exceptions are granted to strict zoning requirements/standards to handle circumstances unique to a specific parcel. The process usually allows remonstrance and due process. And granting one zoning exception does not set a precedent. The "fairness" is embodied in the process, not in the outcome.

As I see it, the initial poster is seeking fairness in outcome, rather than in process. There may be circumstances unique to specific situations that led to the approval of fences for others, but not for the poster.

George,

My opinion, for what it is worth to you.

1) The covenant contract is between an individual owner AND all of the other unit owners. All of us sign off on the same set of restrictive covenants by the mere acceptance of the purchase of a unit within the owners owned HOA.

The covenants are written with a notion of fairness of equality, which may or may not exist, depending on how the unit owners run the association.

As for the "maybe too subtle for most" comment, IMHO, that was another not nescessary comment. I have found a really great lawyers blog that you should post on and leave all of us dummys here to err thru each post.

Actually, the point that this may be more like zoning is a fine point indeed. And here in Texas if zoning enforcement is not done in a consistent manner, then the municipality can end up paying the offended owner for loss of value.

In this very instance if they had a restriction to four foot fences and yet granted a large number of variations, then a person denied could in fact sue for a loss of value. The loss could stem from either of: they are unfairly excluded from having a six foot fence, or they unfairly had their view blocked by the granted six foot fences.

As a note, in my community there are two public hearings. The first in front of the zoning board, and yet another in front of city council. And I have a right to vote off city council members who don't pay attention to the will of the people.

My main thing is that I don't blame the person for wanting consistent rules to be applied. It is one thing to grant a narrow exception because of extenuating circumstance. It is quite another to grant grant many exceptions but only to those with enough for thought to request it in their sales contract.

The appeal of covenants is that you can count on certain things either happening or not. For instance, I like to think that my neighbor won't be able put up a a big ugly shed that towers above the roof line. I like to be able to think that my neighbor won't take our his wooden fence in favor of chicken wire.

These are the reasons one accepts restrictions. I have yet to meet someone who liked every restriction present. But they accept restrictions on their behavior based on the idea that others won't be able to do certain things. I know of nobody that would buy a home that had a restriction that everyone except them could do some action.

Let us consider another thought. What if it was decided that say speed limits were only to be enforced against one person. If that lone person was speeding a ticket would be issued. Anyone else could go any rate they wanted. This would not stand up in courts.

There is never a perfect fairness. But that doesn't mean that there should be no expectation of fairness.

George- I think you should change your screen name to Condescending Barrister!

In Florida, cases have been thrown out when associations have disallowed some requests, yet allowed others that are the same. To assert that associations can pick and choose who to grant waivers to is simply incorrect in Florida. Our statutes speak to this and are very clear.

I don't know the law in your state. If you can provide citations, perhaps you would have more credibility. Even the best HOA attorneys would not render opinions on laws in other states without research. You are quick to opine on issues of which you have no personal knowledge. If you do, I apologize, but would also suggest that you provide examples of the cases that you reference when sharing the vast array of knowledge that you would have us believe that you possess.

If Condescending Barrister has already been taken, perhaps Mr. Know-It-All would be a good second.

UPDATE:

The HOA/Management company did in fact see the error in their ways and consulted with their own attorneys and changed the covenants to allow 6' privacy fences everywhere as long as the owner gets approval from their adjacent neighbors.

I got my approval. All it takes is one person who isn't going to be pushed around. Fair is fair. If one person is approved for something with no special circumstances, everyone should have that right.

Apparently the attorneys agreed with me.

Mandi,

I'm glad to hear you got your approval but I can't say I agree with the new CCR restriction. "as long as the owner gets aproval from their adjacent neighbors", IMO only means the BOD doesn't want to do their job but instead puts the onus on the members. What happens when a new neighbor moves in and objects to the fence? Does that new neighbor get to voice their approval or do they just have to live with it? What if one neighbor approves because he being vindictive against another neighbor who is disapproving? A/C approvals should only be handled by the A/C committee or the BOD; the neighbors should be left out. Approvals based upon the neighbors opinions could very easily result in a lack of conformance throughout the community. I can see a community of 4', 6', 8' fences made from all types of materials perhaps even a 10' wall all around a property simply because the neighbors didn't object.

George,

Oh gosh you are back. You haven't changed. Your main focus is to denegrate others. "..perhaps too subtle for most here". After that I just went to the next message and didn't read the rest. I really do pity you that you must feel superior by talking down to everyone.

Robert,

What do you know about George's background and knowledge other than what he has posted here? Now that he has been asked for citations, etc proving his vast knowledge we will see if he responds with proof rather than just blah, blah, blah.

Ellen,
I this this is the first time I have ever been unable to think of something to say. I think my computer has holes in it and it missed a whole lot on this thread. I suspect like pets, after you keep them for a while they begin to act and look like you do.

Someone is going to have to explain this to me.