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Approval from declarant versus the HOA

Started by TiffanyM • 13 replies • 1580 views

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TiffanyM (South Carolina)
Posts: 4
Posted:
I sumitted for approval to put up a fence. It was approved by the declarant, but people who part of the HOA are saying the approval is not good. I spoke to the property management company and they say the approval is good and there is nothing in the covenants about the fence. Where do I stand? I don't want to go forward with fence and then have people from the HOA sueing me.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Tiffany,

Is your assn still under the control of the declarant? If so, then his approval is all that is really needed. However, if the assn has been turned over to the members and the HOA board is made up of assn members, the declarant's approval may or may not be valid. IMO, to be valid it should be in writing so that you have proof that he did in deed give approval and it wouldn't matter whether or not fences are mentioned, or even allowed, in the CCRs. If it is not in writing, then the HOA board may choose to honor the verbal approval or not.

You are very wise in not going forward on construction of the fence until you know exactly where you stand.

BTW, who are the "people who are part of the HOA" who are saying the approval isn't any good? Are they board members or just fellow members?
TiffanyM (South Carolina)
Posts: 4
Posted:
From what the mangement company is telling me the declarant is in control. I had the company fax me the whole purposal with his signature and date. From what the company says they are still setting up the HOA board. It is a situation that I am caught in the middle of. I went straight to the management company instead of the neighborhood HOA members. So people in my development are angry that I have approval when some of them were told they could not have a fence. Then the other half are angry because they don't want fences. I'm very confused. So far the answer I get from the MC is legally I'm covered, but I might have to deal with people in the neighborhood. Can they sue me?
MaryA1 (Arizona)
Posts: 7,043
Posted:
Tiffany,

No they cannot sue you -- you haven't done anything wrong.

I guess you'll have to do whatever makes you comfortable. If you are concerned that some members are angry over your approval then perhaps you shouldn't build your fence. I, for one, wouldn't let what someone else thinks dictate what I do. If I obtained approval then I have a right to build the fence no matter if others were denied that right. That's between them and the declarant. Let them take up that issue with the declarant. Their issue should be with him and not you and that's what I would tell anyone who confronted me. I guess it all boils down to how badly you want that fence!
RogerB (Colorado)
Posts: 5,067
Posted:
Tiffany, I would get written approval from the architectural committee prior to putting up the fence. The Architectural Committee may be the Declarant or it could be homeowners or other people appointed to that committee.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Roger,

Tiffany stated the declarant is still in control. Written approval from him is really all she needs, whether there is an architectural committee or not.
TiffanyM (South Carolina)
Posts: 4
Posted:
Thank you very much. I feel better and I want my fence, so I'm putting it in this weekend.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Do you have/need a building permit for your city? It surprises many homeowners that building permits are not confined solely to buildings. Even a fence must, in most cases, be permitted.
TiffanyM (South Carolina)
Posts: 4
Posted:
It's county and we do not need a permit. The HOA is enough to deal with.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Quote:
Posted By MaryA1
No they cannot sue you -- you haven't done anything wrong.

Ugg..... never say that Mary. You can sue anyone for anything. The question is....... will you win?

In the end, the only winner is the lawyer. (cha-ching)
RogerB (Colorado)
Posts: 5,067
Posted:
Mary, my response presumed the Declarant was still in control. Technically if the CC&Rs require approval of the Architectural Committee then Lisa should get written approval from that committee before constructing the fence. The Architectural Committee, while under the Declarant's control, usually does consist of employees or friends of the Declarant.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Roger,

Gotcha! You know some declarants do not appoint an architectural committee. While the developer is still in control it's not unusual for the homeowners to go to him with these type requests and he will either allow them or not. Of course there are a lot of variables and it depends upon the size of the community being built.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Steve,

Yeah, you got me on that one! We live in a very litigious society -- sad, but true.
JohnB26 (South Carolina)
Posts: 1,569
Posted:
Quote:
Posted By TiffanyM on 04/20/2010 10:51 AM
It's county and we do not need a permit. The HOA is enough to deal with.

Many counties, including Horry County SC where I happen to live, do require permits for construction/alterations

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