HOA overstepping bounds?

[faus03]

What is the name of your state (only U.S. law)? Kansas

We're currently "fighting" with out HOA on putting up a 6' fence vs. the 4' they want according to the rules. Our city/county law states that fences no smaller than 72" around a pool is a requirement for in-ground pools. We would like to put up a 6' fence to prepare for future plans to put in a pool. Our HOA wants us to submit to the city a plan for a pool and get a permit for the pool before they will OK our 6' fence. We cannot afford both at the same time and do not want to get locked into something we may or may not be able to afford down the road. Are they allowed to require something like this from us before allowing us to put in a 6' fence? HOA rules can be found here: http://mfhoa.org/docs/declaration_of_restrictions.pdf

Bottom line, we want a 6' fence whether we build a pool in the future or not. Being forced to put in a 4' fence now because we cannot afford a pool at the same time means we would have to pay to make the fence 2 feet taller which would basically be a re-build. Do they really have the power to require us to have a pool permit before they will allow us to put in the fence?

 

[csi7]

The six foot fence requirement by the city is the one to go by.

The HOA should approve the request since it is a legal requirement by the city, and that is why you are putting up the fence.

 

[You Are Guilty]

The six foot fence requirement by the city is the one to go by.

The HOA should approve the request since it is a legal requirement by the city, and that is why you are putting up the fence.

And if the CC&Rs say that the 4' fence is the rule, ^this reply^ is 100% incorrect and the HOA can absolutely dictate that you install the 4' fence until such time you have a pool. The fact that they were willing to waive the "actually having a pool" requirement and let you do it with just a pool permit from the city sounds like they were already going out of their way to try to work with you. (Your finances are not the HOA's concern).

 

[ecmst12]

Put the money for the fence in a savings account and leave it there until you have the money to add the pool.

 

[strongbus]

op may want to head to city hall and talk to code enforcement or who ever issue permits. Or talk to a lawyer who know bout her towns zone and building rules/laws and HOA's. Don't know bout ops state but where i live i can think of at lest 4 or 5 cities/towns that have rules on the book that state that if the city will give you a permit to build something that the HOA can't stop you or fine you at all. It might be a long shot but one the OP may want to check out to see what her towns rules are on this. If they have some rules like these on the book then if her town want to give her a permit for a 6ft fence then she can build it and the HOA is powerless to stop it or to fine her in anyway.

 

[faus03]

And if the CC&Rs say that the 4' fence is the rule, ^this reply^ is 100% incorrect and the HOA can absolutely dictate that you install the 4' fence until such time you have a pool. The fact that they were willing to waive the "actually having a pool" requirement and let you do it with just a pool permit from the city sounds like they were already going out of their way to try to work with you. (Your finances are not the HOA's concern).

So you're saying that they really do have the power to require this from me before we put a fence in? The rules say "No fence shall exceed 48" in height unless specifically approved for a greater height by the HOA." I would think that statement is too vauge to require a pool permit. Doesn't the benefit go to the person signing the contract when there is a discrepancy on what the statement actually means?

Put the money for the fence in a savings account and leave it there until you have the money to add the pool.

And miss out on having a fence in the mean time? No thanks.

op may want to head to city hall and talk to code enforcement or who ever issue permits. Or talk to a lawyer who know bout her towns zone and building rules/laws and HOA's. Don't know bout ops state but where i live i can think of at lest 4 or 5 cities/towns that have rules on the book that state that if the city will give you a permit to build something that the HOA can't stop you or fine you at all. It might be a long shot but one the OP may want to check out to see what her towns rules are on this. If they have some rules like these on the book then if her town want to give her a permit for a 6ft fence then she can build it and the HOA is powerless to stop it or to fine her in anyway.

To following information should be submitted with all permit applications for pools in my area:

Provide plot plan to scale, showing location of existing buildings and proposed location of pool and setbacks from property lines and house, and also type and location of barriers enclosing the pool or hot tub.
A completed and signed Residential Permit Application (pdf) form.
Please read and sign in the presence of a notary, the compliance form “Barriers for Swimming Pools and Hot Tubs” (pdf).
Provide manufacturer’s specifications, drawings, and installation instructions. Only UL listed and approved materials will be approved for use. Indicate provisions for filling and draining the pool.
In-Ground pools: A Low Impact Land Disturbance Permit (LDP) is required.The permit application form must be completed and signed. An Erosion Control Plan must also be submitted to the City showing the erosion control measures taken to ensure the soil will not be leaving the construction site. The construction entrance must be identified on these plans. The fee for the Low Impact Land Disturbance Permit is $75.00.


Seems like a lot of hassle, time, money to do this and then wait a year or two, or more until we can afford the pool.

 

[Zigner]

The HOA board has given you the requirements they have in order for your to install a fence that varies from the height limits. This is not a "contract" matter.

 

[tranquility]

"No fence shall exceed 48" in height unless specifically approved for a greater height by the HOA." I would think that statement is too vauge to require a pool permit. Doesn't the benefit go to the person signing the contract when there is a discrepancy on what the statement actually means?

There is nothing vague about it. Was the increase in height "specifically approved by the HOA"?

No.

They can put what conditions they want on the approval as long as it is not in bad faith or otherwise illegal. (No approval based on sex, race, etc.)

 

[strongbus]

OP what I was saying is that you should ask you town/city what there rules are on if a hoa can stop you form doing something that the town will let you do. there are 2 things that could fit here.

1st You town dose not have any rules saying an HOA can't have any extra steps or stuff you have do to install something that the town has giving you a permit to build.

2nd You town has rules that state that if the city will give you a permit to build something, then you can build it and the HOA can't stop you or fine you in anyway.


If number 1 is true then you are stuck dealing with the the HOA's rules.

If number 2 is true then you can build your 6ft fence as permitted by your town and the HOA can't do a thing about it.

This could be as simple as calling your city hall and saying that you where giving a permit to build a 6ft tall fence by them but that your HOA is telling you that you can't. Then ask who's rules override who's.

 

[Zigner]

OP what I was saying is that you should ask you town/city what there rules are on if a hoa can stop you form doing something that the town will let you do. there are 2 things that could fit here.

1st You town dose not have any rules saying an HOA can't have any extra steps or stuff you have do to install something that the town has giving you a permit to build.

2nd You town has rules that state that if the city will give you a permit to build something, then you can build it and the HOA can't stop you or fine you in anyway.


If number 1 is true then you are stuck dealing with the the HOA's rules.

If number 2 is true then you can build your 6ft fence as permitted by your town and the HOA can't do a thing about it.

This could be as simple as calling your city hall and saying that you where giving a permit to build a 6ft tall fence by them but that your HOA is telling you that you can't. Then ask who's rules override who's.

OP is not going to be able to get the city attorney to give him a legal opinion over the phone

(and, yes, that's what you are suggesting)

 

[faus03]

City's fence requirements state "Check your Homes Association and deed restriction before constructing any fence, they may have additional regulations regarding building materials, height and location. Any regulation that exceeds City requirements will be enforced through the Homes Association or deed restrictions."

What exactly does that mean in this case?

 

[Zigner]

City's fence requirements state "Check your Homes Association and deed restriction before constructing any fence, they may have additional regulations regarding building materials, height and location. Any regulation that exceeds City requirements will be enforced through the Homes Association or deed restrictions."

What exactly does that mean in this case?

Really?

It means that you will need to follow the rules of your HOA.

ETA: In this case, "exceeds" means "is more strict than"

 

[LeeHarveyBlotto]

City's fence requirements state "Check your Homes Association and deed restriction before constructing any fence, they may have additional regulations regarding building materials, height and location. Any regulation that exceeds City requirements will be enforced through the Homes Association or deed restrictions."

What exactly does that mean in this case?

It means you don't get to build the 6' fence until you have a pool, or a permit to build a pool.

 

[strongbus]

OP is not going to be able to get the city attorney to give him a legal opinion over the phone

(and, yes, that's what you are suggesting)

I have called city halls for a number of cities to help family members out with getting permits or what every and have never had to talk to the city attorney.

Its always been ok what is the issue you got and then told that they would mail the city rules out the next day or say where on the town website we could find the city rules posted.

But it would seem as the OP posted that her town states that if a HOA has extra rules then she has to follow them as well as city rules. But one thing comes to mind whats to stop the OP form getting the permits for the pool get the HOA ok for the 6ft fence, build the fence then just not do the pool. There are hundreds of reasons the op could give as to why could not finish the pool.

 

[ProSeAgain]

You should also know that permits will expire if no work is commenced within a certain period of time (this varies from muncipality to municipality) and you will either have to re-apply for the permit (with associated fees) or pay additional fees to have it "reactivated". So, if your HOA requires you to pull a pool permit when you have no specific start date in mind, plan to budget this additional expense down the road if you don't begin construction on the pool in the proscribed timeframe.