Covenants Over ruled by Builder

Patricia,
Your post suggests that the builder is the developer and their Board is in charge of the HOA. Perhaps the Declaration of CC&Rs allows the Board the right to issue variances and one was issued for the 6"fence.

You could contact the Board and ask if a variance was issued. If not, request they enforce the restriction on fencing. If they will not you may have the right to enforce the restriction if you want to initiate legal action.

So first read your Declaration of CC&Rs and then get the facts from the builder (ie,Board)(ie,Architectural Committee).

Patricia - Are you in an area that is subject to local zoning restrictions? Does a homeowner have to get a building permit before they build or install anything on their property? If so, you might have a couple of options available to you other than the fact that the builder made a special exception to the CC&R's in order to entice these people to buy a house. If your community does have zoning ordinances, call the Zoning Board and find out about the required setbacks for fences. Maybe your neighbors have failed to adhere to the setbacks required by local zoning ordinances. If so, they will have to "adjust" the fence or remove the fence or attempt to get a variance from the Zoning Board. If they have to apply for a variance, there will be a public hearing before the Zoning Board's Variance Board. Neighbors can express their opinions at these hearings. This is the place where you need to point out that the community's documents prohibit the type of fence that was installed and that the neighbors are in violation of the community's governing documents. It also wouldn't hurt to ask the Zoning Board if there are any restrictions regarding what type of fences can be erected. You might get lucky there. The next thing to determine is whether your city or county requires a building permit for the erection of a fence on a single-family lot. If a building permit is required and one was not obtained, your neighbors will have to try to get a building permit after the fact and then try to get their fence approved by a building inspector. While neither of these suggestions may cause the privacy fence to disappear, they will cause your neighbor considerable time and a moderate amount of money to handle.

Roger Thanks,

We did receive a copy of the Rules from our HOA, Cedar Management, and we have called them quite a few times alredy. There was no exception on this fence. When I called, Cedar Management, the fence was not yet even approved. That was when construction stopped. And they received the hand delivered nasty gram on stopping construction and the $100 fine every day it is up.

Now, what we are hearing is that the builder had told these folk the fence was fine. I believe Cedar Management is doing ther best to enforce, but it is obvious the neighbor does nor care..the fence is now completed.

Patricia,

The nature of real covenants (restrictive covenants, covenants that run with the land, equitable servitudes) is that "It does not matter whether you understand the nature of the organization or that you have read the documents recorded against the property. You will be responsible for knowing what the covenants contain." (From condolawyers.com)

If the builder was not in control of the assn at the time the home was sold then he had no authority to grant authority to build the fence. However, if he was still in control, then he should be contacted to verify that he did indeed grant the building of a 6' fence. Coupled with this info the h/o's fence should be grandfathered.

There seems to be a lot of hearsay going on. It's best to let the mgmt co and the BOD handle the situation -- only they know the whole story. Hopefully when it's all over they will let the members in on the real story.