Expert: Dick Dennis - 8/16/2009

Question
QUESTION: I live in a golf course community with an HOA.  Fences are allowed in my community, however there are design guidelines that specify what types of fences are allowed.  Numerous people in the neighborhood have erected fences, and many of them are not in compliance with the guidelines.  I submitted a request for an ornamental aluminum fence in the rear of my yard because it provides an open view and it is maintanence free, however it is outside the design guidelines which require solid wooden fencing or three rung wooden estate fencing.  There are currently several fences in the neighborhood that are identical fence to the one I requested .  It is also consistent with the fencing around the community pool, playgrounds and model homes.  Architectual consistency is one of the things the HOA design guidelines sites as a determining factor for architectual design in the community.  The first Board approved my fence request, but with a contingency that the golf course concurred because I wanted it placed on my rear property line and the guidelines state if you live on the golf course fences must be placed 15' off of the property line unless the Board approves otherwise, so they left it up to the golf course to allow.  The golf course sent a letter saying they did not want any fence at all, which is not consistence with what the HOA allows (we believe this was because my neighbor who is a member of the course and is opposing any fence on my property spoke to the course).  It was later determined that the golf course is not allowed to weigh in on the matter, so I resubmitted my request to the Board and asked them to lift the contingency of the golf course concurrence and allow the approval of the fence to stand on its own.  By this time the Developer Board had switched over to a new "homeowners only" Board and the new Board completely denied my fence citing that it did not comply with the HOA design guidelines.  Can the the Board allow several other fences of the exact same type in my community, however deny my request for the exact same fence?  Do I have any recourse or options now?  I do not want a solid privacy fence that will require regular maintenance and I believe that if others in the community can have a particular fence, why shouldn't I be allowed?

ANSWER: Ah, the miseries of being part of a HOA. Based on what you say, Dayna, it certainly seems logical that you should be allowed to have a fence like others (around the golf course). I live on a golf course perimeter, too, and the cyclone (if that is what you mean by "aluminum") or solid fencing is allowed. It's the height limitation that is a bone of contention for many. But because of the years that have passed, some have surpassed the height limitations and the objection to that has faded with the passing years. Apparently, yours is a newer development, so you are having this problem.

There is only one remedy for you, Dayna: You really must bring a REAL ESTATE attorney with HOA specialty experience into this picture. Trouble is, of course, you have to pay twice, once as a member of the HOA and once as a member who has a bias problem. The attorney would dislodge the logjam, guaranteed, especially since others have the same kind of fence you want or a not-approved variety. I do wish you well.

Dick Dennis
dixiedee13@aol.com

---------- FOLLOW-UP ----------

QUESTION: Does it make a difference whether or not the the other fences were approved by the Board or if they were put up illegally?  If the homeowners constructed their fences without the Boards approval can it still be considered bias?  I have been trying to find out from the property manager whether the other fences in the community of similar style were approved by the Board, however they will not respond to my continued requests for information.  Most information regarding architectual modifications and Board decisions is contained in the meeting minutes which is provided via the community website, however there is nothing on there regarding prior fence decisions.  I have considered an attorney, but I don't want to spend the money unless I am sure I have a case.  I have been told that HOAs can generally do whatever they want unless they are discriminating specifically against race, sex, etc.

Answer
Yes, I do recommend you attend the HOA meetings, Dayna, especially if they permit members to stand up to voice opinions or complaints. I don't think you truly know for a fact that the other fences were put up illegally or without the permission of the board. However, if they were and the board did not do anything about it, then you have a solid basis on which to stand. But there are some HOAs that are very lax and do not respond to any complaint and request unless they are forced. They may even dare you to object to anything they pass as legislation without a vote being taken. If that be the case, then you really need to get that attorney (as I previously suggested), expense or not. Other than that, if it was me I would just go ahead and build my fence (like I actually did, by the way) and let the board take their first step. Then I would get the attorney if need be (hasn't been necessary after 7 years so far). Take care.

Diok Dennis