Sheds and Fences
Question:I live in a community of 92 townhomes which contains some very small and odd shaped lots. Many homeowners have storage problems. The declaration of covenants prohibits sheds, but our board is discussing allowing small ones. Can this be done? There is also a fence problem - fences are not prohibited but are regulated by the Architectural Standards Committee in accordance with the developer's Architectural Guidelines. A number of fences not conforming to the rules have been put up without action by the ASC - what can be done about removing them?
Answer:Your first question about sheds will help illustrate a very basic principle of community association law, that is, when a covenant requires or prohibits something, such as "no sheds", it is not up to the Board of Directors to override that mandate in the recorded covenants. The covenants are "the law of the land". Since the covenants contain a ban on sheds, the members will be required to vote to amend the declaration in order to permit sheds.
If an amendment is passed by the required percentage of owners, and properly recorded in the deed records, then the Board should exercise its authority to pass a resolution about sheds including all desired specifications. Then those rules should be added to the Architectural Guidelines.
As to your fences - this question perhaps raises more issues than you expected. The answer depends on how long the fences have been in place and the specifics of your fence guidelines. Ideally, your fence rules should be very specific about size, materials, design and placement of fences. The rules should leave little to the discretion of the ASC so as to avoid inconsistent actions on fence applications. Assuming these fences you refer to have been in place for only a few weeks or months, then some action to remove them should be undertaken. A personal visit should be made to each homeowner by a member of the ASC who should explain the violation and request compliance. If the owner is not cooperative, you should take photos of the fence and seek legal counsel about your options. It is the fiduciary duty of the Board members and the members of the ASC to pursue violations of the covenants or rules, under advice of counsel, when homeowners choose not to comply.
Regulating architectural modifications can be time consuming and challenging for many communities. They must balance the individual owners' desire to make improvements to their lots and homes with the standards established for the community in order to maintain a certain degree of uniformity. To achieve this balance, the Board should communicate with the homeowners and seek community input on certain issues. Hopefully, such communication will insure that the rules are in harmony with the desires of most owners.
Very informative site - thank you. Just moved from Northern VA to Albuquerque, NM. Homeowner next door has just put up a trellis fence covered with green construction fabric so they will have more "privacy". They placed the trellis 4 inches inside the block wall, extended the wall by 3 feet in height by doing this and we sit here with a wall of stretched out green fabric blowing in the wind. This is an upscale community in the city - the HOA said they would send it to their lawyer - now they say they really don't have the money and maybe we should just help fund a taller block wall for this neighbor. It is a community block wall running between our properties. I would appreciate any suggestions as to how to deal with the HOA Board.
RESPONSE: I suggest that you review your recorded documents and architectural guidelines for provisions concerning exterior improvements and the approval requirements. I cannot imagine this addition was approved. If approval was required then the board should act to require removal. If they don't, it is likely that you can hire counsel on your own to either force the board to act or obtain an injunction against your neighbor based on a violation of the covenants or rules. But everything depends on what is in your association documents. You will likely need legal counsel. Make sure it is someone who has experience in community association law and the enforcement of covenants.