Fencing - PVC vs Wood

Debbie,

I'm surprised only a 40% vote is required to amend your CCRs. Are you certain about this? The vote requirement is usually 75% or more.

Regarding your fences, actually it seems to me wood would look a lot nicer than PVC. If taken care of properly it should hold up. Of course I would recommend using pressure treated wood. An application of linseed oil every few years usually keeps the wood looking nice.

It states in our CCR's Under Notice & Quorum for any action:

At any meeting the presence of Members or their proxies entitled to cast 40% of all the votes of each class of Membership shall constitute a quorum.

There are places where 75% is required - raising dues over 10%, any special assessments, any special expenditures out of the ordinary & changing the the board(AOC).

We just upped the board from 3-5 & that required 75% - if you can believe we actually got 84 votes!

Of course I could missing something in the verbiage as I'm not a lawyer.

a quorum is the number needed to hold an official business/meeting. that number is NOT necessarily the amount needed to create a majority to pass proposals.

you need 40% of the members at the meeting, just to have the meeting. You probably have to have some other number in order to amend the CC&R's, typically a very high number. Otherwise, 21% of your membership could drastically change the CC&R's in a single meeting.

Donna,

I am simply amazed at how much we think alike. I'm in Florida and know carpenter ants and termites love wood..it's their favorite food. I say to the OP explore your options. We had a new home built with a wooden fence and learned later that carpenter ants ran along the fence and entered the side of our home causing interior damage. This would not have happened if we had chosen another material.

Debbie,

I guess I just like a wood fence! We lived in Baton Rouge, LA for 6 years; our house had a porch across the front of the house and the railings were stained wood. We never had a problem with the wood and you'd be hard pressed to find a more humid climate. I googled PVC fences and came up with alot of info. There is a Cambrium vinyl fence that looks like wood. And I saw an ornamental aluminum fence that looks like wrought iron. I have to concede that a vinyl fence could look just as nice as wood. When amending the CCRs you may consider allowing both unless the board and member feel all fences should look exactly alike.

The required quorum for a meeting should not be confused with the required vote % to amend the CCRs. If you look at the "amendment" article in the CCRs the required vote % should be stated. Usually it is very high -- perhaps 75% or more. The meeting at which the vote will be taken may only require a quorum of 40% but for the amendment to pass a vote of 75% may be needed.

You would need to amend the documents unless they are worded something like all fences must be constructed of wood or other material approved by the BOD/ACC. You can't write a rule to get around a covenant.

Debby - If the vote at the annual meeting supports wooden fences, I'd suggest that you propose amending the documents to include PVC fencing. Of the 40% required for a quorum at the annual meeting, several, if not most, of that 40% may be in the form of proxies. That means that someone else is voting for each proxy that they hold. So, the vote at the annual meeting may be skewed. When you have to get 75% of the actual owners signatures in order to amend the documents, it's much harder for one or two proxy holders to control the results. If you decide to tackle an amendment, you should consider going door-to-door to campaign for your position. Take some generic pictures of the condition of the wood fences. For example, a picture of a section of the fence where the house cannot be identified. Be sure to have some pictures of what the vinyl privacy fences look like. Call a local fencing company and ask them where they have installed these types of fences that are at least 4 or 5 years old. Then go take the same kind of generic picture of those fences. It's always advisable to knock on the homeowner's door and ask permission to photograph a section of their fence. Then they won't think you're just a pervert! I'm assuming that these fences are at single family homes covered by a HOA. And, don't let the BOD tell you that you can't amend the documents. Anyone who can obtain 75% of the owners signatures can amend the documents. An attorney needs to draft the actual amendment to the CC&R's. But, maybe you've got a qualified attorney in your neighborhood who will volunteer their time to draft the amendment.

Debbie,

I don't think it would be legal to add something to the ARC that would be in violation of the CCRs. IMO, the only way to make this change is by amending the CCRs. Sorry!

Why on earth would CCRs be worded so specifically? Will they stand the test of time in 5, 10 years?

How about a more general statement that all fences should appear uniform in size, color and appearance and have to go thru the ARC committee or board for final approval.

(Heck the entire HOa may want a change to white picket in 5 years.)

Debby - Don't know how old your CC&R's are, but "obsolescence" (did I spell that right?)can be used as a basis for amending the original documents. Check with the HOA's attorney.

Absolutely, Mary. The board just can't simply say, "well, it's 'obsolete,' we don't have to enforce that one anymore! Phew!"

IF, repeat, IF the board and the requisite number of members believe a particular restriction is "obsolete," then they most likely have the ability to change it through the proper steps required in the CC&Rs or other governing documents.

Also, some governing documents are not "amendable" at all for a number of years, regardless of whether 100% of the membership feels about any particular restriction and whether it's "obsolete" or not.

I've seen some require as many as 30 years before any amendments can be made.

Um, the answer to that? "Yes, I would consider it highly reasonable."

Especially IF you don't have the requisite number of member votes to AMEND the documents.

For one thing, I don't find it at all "unreasonable" to require wood only. Someone else might, but I don't. It's sort of an arbitrary and subjective standard, don't you think? In other words, I would make you "prove" in a court that allowing wood-only fences is "unreasonable."

And with all "civil" respect, the below comment is just a really stupid and irrelevant statement to tack onto the discussion. It's a logical fallacy to even compare involuntary servitude with wood-only fences.

Nice try though.

Don't "scare" us newbies off! Someday we might have the information, knowledge, or experience that you need! Duh . . . amending? I ain't never heerd of this here amending thing that yall are talkin' about! Does it come in different colors?

I used the (poor) example to show how laws and rules can become obsolete.

eg. 'siding shall be cedar wood only'

-hardi-plank- (a modern cement based product) is visually identical (unless checked from 1-2') and lasts 50+ years, yet my HOA still will not permit

Any practising attorney out there wish to correct me?

Hi Debbie,

My HOA replaced about 5,000 feet of wood fencing about five years ago with vinyl. We went with a tan color because the white color fencing looked too "plastic".

I don't think vinyl fencing looks as nice as real wood, but it is so much easier to have vinyl than wood. We had a four year installation guarantee from the company that installed it. We had a few gates that needed adjustments over the first few months and that was it.

The fences themselves have a 25 year warrantee from the manufacturer. The warrantee is in the name of the HOA so no matter how many owners a particular unit has during thta time, the HOA holds the original warrantee.

We're in Southern California, so we gets lots of sun and heat. There hasn't been any fading, discoloration or warping of the fences yet, so we've been very happy with them.

Probably the biggest benefit is the lack of time, money and effort spent on repairing, replacing and repainting the wood fences. The old wood fences were constantly needing repairs, they were over 20 years old when replaced, and it was impossible to make an annual budget with a line item for fence repairs and replacements since we had no idea how much they would cost each year.

If you can go with vinyl fencing, I would recommend it. As with any big purchase, just do a lot of research first.

MicheleD,
I totally agree with your statement "while wood-only fencing may not be "progressive," a board cannot simply make a rule adding other materials as acceptable if the CC&Rs specify "wood only," regardless of how backwards that might seem to some." Boards should always obey those sections of the CC&R which are not made obsolete by higher order laws; they should amend the CC&Rs at times deemed necessary by the association.

The discussion on fencing materials illustrates why it is not wise to totally lockin what type material can be use. We have helped many HOAs amend their CC&Rs on roofing materials while maintaining the option to add new materials without amending the CC&Rs as new and better materials become available in the future.

I like some of the manufactured materials for fences (and decks) better than wood. One HOA we manage put up a 6' high solid trex fence this spring. It was twice the cost of a 6' high solid cedar fence but it will have less maintenance cost, a longer life, higher wind resistance, and looks better. Over its life the cost of the two choices would be approximately the same.

You are quoting from my quotes of what someone else has said. (and with whom i disagree)
This board format can be confusing.
Actually you and I seem to be in perfect agreement.

Roger,

Some of the statements you attribute to John B were actually made by me:

"Only HOA nonprofit corps have CCRs" and "If the CCRs are outdated, the only remedy is to amend them; but in the meantime they must be enforced."

Both of those statements were made in response to the following statement made by John: "By most state's not-for-profit corporation law all CC&Rs must be 'reasonable' .... if they are very old and new (better) modern materials not available at the time of original writing are now requested would it be reasonable to deny them?"

The first statement was made to let John know that nonprofit corp statutes do not address CCRs and that HOAs are the only type of nonprofits that have CCRs. THis was not a discussion about what an HOAs controlling documents are called.
My statement was made to let him know that the only nonprofits that have CCRs are HOAs. My response was not made in answer to a discussion on what HOA gov docs are called.

John's statement was made in regard to the OP's question about the CCR restriction for fencing materials. My reply was giving my opinion regarding enforcement of this one rule only, not enforcement of the CCRs as a whole.

What are you talking about when you say: "A not-for-profit PAYS FEDERAL TAXES but gets many state 'breaks' including reduced property taxes as a 'public benefit' not-for-profic co."

IMO, the IRS does not differentiate between nonprofits and not-for-profits. They are regarded as charitable, tax-exempt orgs. They file as a tax exempt org on Form 990. HOAs are not regarded as nonprofits (or not-for-profits) they are regarded as corporations. A nonprofit org that is not tax-exempt (such as an HOA) files a corp. tax return on the Form 1120. An HOA can also file on the tax form specific to HOAs -- 1120H, which is also a corporate tax return.

Except for the part that says: "(which may or not be a nonprofit per IRS)", I agree with what you say. I just don't agree with your thinking that the IRS distinguishes between nonprofit and not-for-profit. The two terms mean the same!!!

A typical set of by-laws for a not-for-profit corporation as governed by standard legal practices (compliant with most state's corporate law:

BY-LAWS OF [NAME], A NOT-FOR-PROFIT CORPORATION

ARTICLE I ORGANIZATION

1. The name of the organization shall be [NAME].

2. The organization shall have a seal which shall be in the following
form: [DESCRIBE]

3. The organization may at its pleasure by a vote of the membership body
change its name.

ARTICLE II PURPOSES

The following are the purposes for which this organization has been
organized: [DESCRIBE]

ARTICLE III MEMBERSHIP

Membership in this organization shall be open to all who [DESCRIBE].

ARTICLE IV MEETINGS

The annual membership meeting of this organization shall be held on the
__________ day of [MONTH] each and every year except if such day be a
legal holiday, then and in that event, the Board of Directors shall fix
the day but it shall not be more than two weeks from the date fixed by
these By-Laws.

The Secretary shall cause to be mailed to every member in good standing
at his address as it appears in the membership roll book in this
organization a notice telling the time and place of such annual meeting.

Regular meetings of this organization shall be held [LOCATION].

The presence of not less than _________ ( ____%) percent of the members
shall constitute a quorum and shall be necessary to conduct the business
of this organization; but a lesser percentage may adjourn the meeting
for a period of not more than _________ weeks from the date scheduled by
these By-Laws and the secretary shall cause a notice of this scheduled
meeting to be sent to all those members who were not present at the
meeting originally called. A quorum as herein before set forth shall be
required at any adjourned meeting.

Special meetings of this organization may be called by the president
when he deems it for the best interest of the organization. Notices of
such meeting shall be mailed to all members at their addresses as they
appear in the membership roll book at least ten (10) days before the
scheduled date set for such special meeting. Such notice shall state the
reasons that such meeting has been called, the business to be transacted
at such meeting and by whom it was called. At the request of ___________
( _____%) percent of the members of the Board of Directors or
___________ ( _____%) percent of the members of the organization, the
president shall cause a special meeting to be called but such request
must be made in writing at least ten (10) days before the requested
scheduled date.

No other business but that specified in the notice may be transacted at
such special meeting without the unanimous consent of all present at
such meeting.

ARTICLE V VOTING

At all meetings, except for the election of officers and directors, all
votes shall be by voice. For election of officers, ballots shall be
provided and there shall not appear any place on such ballot that might
tend to indicate the person who cast such ballot.

At any regular or special meeting, if a majority so requires, any
question may be voted upon in the manner and style provided for election
of officers and directors.
At all votes by ballot the chairman of such meeting shall,
prior to the commencement of balloting, appoint a committee of three who
shall act as "Inspectors of Election" and who shall, at the conclusion
of such balloting, certify in writing to the Chairman the results and
the certified copy shall be physically affixed in the minute book to the
minutes of that meeting.

No inspector of election shall be a candidate for office or shall be
personally interested in the question voted upon.

ARTICLE VI ORDER OF BUSINESS

1. Roll Call.
2. Reading of the Minutes of the preceding meeting.
3. Reports of Committees.
4. Reports of Officers.
5. Old and Unfinished Business.
6. New Business.
7. Adjournments.

ARTICLE VII BOARD OF DIRECTORS

The business of this organization shall be managed by a Board of
Directors consisting of [#] members, together with the officers of this
organization. At least one of the directors elected shall be a resident
of the State of __________ and a citizen of the United States.

The directors to be chosen for the ensuing year shall be chosen at the
annual meeting of this organization in the same manner and style as the
officers of this organization and they shall serve for a term of _______
years.

The Board of Directors shall have the control and management of the
affairs and business of this organization. Such Board of Directors shall
only act in the name of the organization when it shall be regularly
convened by its chairman after due notice to all the directors of such
meeting.

___________ ( ____%) percent of the members of the Board of Directors
shall constitute a quorum and the meetings of the Board of Directors
shall be held regularly on the [DATE].

Each director shall have one vote and such voting may not be done by
proxy.

The Board of Directors may make such rules and regulations covering its
meetings as it may in its discretion determine necessary.

Vacancies in the Board of Directors shall be filled by a vote of the
majority of the remaining members of the Board of Directors for the
balance of the year.

The President of the organization by virtue of his office shall be
Chairman of the Board of Directors.

The Board of Directors shall select from one of their members a
secretary.

A director may be removed when sufficient cause exists for such removal.
The Board of Directors may entertain charges against any director. A
director may be represented by counsel upon any removal hearing. The
Board of Directors shall adopt such rules for this hearing as it may in
its discretion consider necessary for the best interests of the
organization.

ARTICLE VIII OFFICERS

The initial officers of the organization shall be as follows:
President:
Vice President:
Secretary:
Treasurer:

The President shall preside at all membership meetings.
He shall by virtue of his office be Chairman of the Board of
Directors.
He shall present at each annual meeting of the organization an annual
report of the work of the organization.
He shall appoint all committees, temporary or permanent.
He shall see all books, reports and certificates required by law are
properly kept or filed.
He shall be one of the officers who may sign the checks or drafts of
the organization.
He shall have such powers as may be reasonably construed as belonging
to the chief executive of any organization.

The Vice President shall in the event of the absence or inability of the
President to exercise his office become acting president of the
organization with all the rights, privileges and powers as if he had
been the duly elected president.

The Secretary shall keep the minutes and records of the organization in
appropriate books.
It shall be his duty to file any certificate required by any statute,
federal or state.
He shall give and serve all notices to members of this organization.
He shall be the official custodian of the records and seal of this
organization.
He may be one of the officers required to sign the checks and drafts
of the organization.
He shall present to the membership at any meetings any communication
addressed to him as Secretary of the organization.
He shall submit to the Board of Directors any communications which
shall be addressed to him as Secretary of the organization.
He shall attend to all correspondence of the organization and shall
exercise all duties incident to the office of Secretary.

The Treasurer shall have the care and custody of all monies belonging to
the organization and shall be solely responsible for such monies or
securities of the organization. He shall cause to be deposited in a
regular business bank or trust company a sum not exceeding $ ________
and the balance of the funds of the organization shall be deposited in a
savings bank except that the Board of Directors may cause such funds to
be invested in such investments as shall be legal for a non-profit
corporation in this state.
He must be one of the officers who shall sign checks or drafts of the
organization. No special fund may be set aside that shall make it
unnecessary for the Treasurer to sign the checks issued upon it.
He shall render at stated periods as the Board of Directors shall
determine a written account of the finances of the organization and such
report shall be physically affixed to the minutes of the Board of
Directors of such meeting.
He shall exercise all duties incident to the office of Treasurer.

Officers shall by virtue of their office be members of the Board of
Directors.

No officer shall for reason of his office be entitled to receive any
salary or compensation, but nothing herein shall be construed to prevent
an officer or director for receiving any compensation from the
organization for duties other than as a director or officer.

ARTICLE IX SALARIES

The Board of Directors shall hire and fix the compensation of any and
all employees which they in their discretion may determine to be
necessary for the conduct of the business of the organization.

ARTICLE X COMMITTEES

All committees of this organization shall be appointed by the Board of
Directors and their term of office shall be for a period of one year or
less if sooner terminated by the action of the Board of Directors.

The permanent committees shall be: [DESCRIBE]

ARTICLE XI DUES

The dues of this organization shall be $ _______per annum and shall be
payable on [DATE].

ARTICLE XII AMENDMENTS

These By-Laws may be altered, amended, repealed or added to by an
affirmative vote of not less than ________________ (_____%) percent of
the members.

_____________________________________________________________________________________

You will find that YOUR documents are virtually identical to this 'template', if not they are probably at odds with your state statutes.

The IRS does NOT recognize HOAs as not-for-profit (there is NO IRS not-for-profit
nor do they accept them as 501(c)(3) - non-profit

What is it with all these posts showing no names or states of the posters?