Can HOA regulate a placement of a fence, if it is not in their rules and regulations, bylaws etc..?

Started by ES • 2 replies • 2564 views

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ES (Florida)
Posts: 1

Posted:

I recently went to ARB Panel and requested approval for a fence that would be 5 feet away from the side walk..
(The property is on a corner lot and the back yard abuts to another back yard. The lot is not a reverse corner, where the back yard abuts to a side yard. The street curves at the corner of the property and there is no intersecting street)

The ARB(HOA) Stated the fence must be 20 feet away from side-walk per Orange county code(FL)and the HOA regulation. I tried to explain that county code does not have any code for corner lots for the exception of a reverse corner lots, which my property is not. I ask, where in the HOA regulation states a fence must be 20 feet away from the side-walk. They were unable to provide such info. They also stated that the placement of the fence would be a safety issue with anything less than 20 feet away from side walk.
The county zoning was contacted. I was told by zoning, there is no safety issue and the county would have no issue if i decided to put the fence all the way up to the sidewalk.

After reading all the HOA regulation, bylaws, admendments etc, there is nothing stating a fence location on a corner lot or how far a fence should be from the side walk on any lot.

After numerious talks with the property managerment company, they stated the HOA can dictate were a fence is place and it does not need to be in writting in the HOA regulation or in one of the HOA admendments.

Can an HOA dictate were a fence is place if it not in any of the bylaws, regulation, etc?
Can a HOA dictae zoning?

MicheleD (Kentucky)
Posts: 4,491

Posted:

It's very simple.

It would be very rare, indeed, that a set of deed covenants and restrictions contain exact language for all possible iterations and specifications over which the ARC has control.

It's more likely that the covenants give the ARC authority to establish guidelines and specifications of things like any external changes to the lot, which would include, but not be limited to, fencing.

In which case, they can create a specification that restricts the location and setback for fencing.

And whether the local or city code enforcement has any issues with the fencing is irrelevant.

They would not be expected to enforce developments' covenants, which can be more restrictive than local zoning codes.

As an example, here is what our covenants say about any lot additions: (note that there are no SPECIFICATIONS, but the ARC has the right to create those.)

Section 1. Approval of Construction Plans.

(a) No structure may be erected, place or altered on any lot until the construction plans and building specifications and a plan showing (i) the location of the improvements on the lot; (ii) the grade elevation (including rear, front and side elevations); (iii) the type of exterior material (including delivery of a sample thereof); and (iv) the location and size of the driveway (which shall be asphalt or concrete), and shall have been approved in writing by the Developer.

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(c) References to "Developer" shall include any entity, person or association to whom Developer may assign the foregoing right of approval. References to structure in this paragraph shall include any building (including a garage), fence, wall antennae (except for standard small television antennae) and microwave and other receivers and transmitters (including those currently called satellite dishes).

And then in our By laws:

Article V. Committees
The Standing Committee of the Residents Association shall be: The Architectural Control Committee

The Architectural Control Committee shall have approval over any matters pertaining to fences, landscaping, and driveways. Such approval shall extend to the addition or modification of the above as well as to any architectural addition to or modification of the exterior of existing residences. The Architectural Control Committee will develop guidelines and specifications for all matters over which it has approval authority.

The Board may create or dissolve any and all committees, as it deems desirable.

RogerB (Colorado)
Posts: 5,067

Posted:

ES, Yes an HOA Architectural committee can decide on whether or not to approve your fence request. However, their decision should be reasonable not arbitrary. And you should have the right to appeal their decision to the Board.

No an HOA can not dictate zoning, that is the function of an applicable zoning department of a City, Township, or County.

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