Dispute Over Fence with Homeowner's Assoc.

[janew228]

I am a homeowner in NC with a Homeowner's Association. In August of 2000, I submitted a Request for Architectural Approval for a Shadow Box fence. This request was approved by the Homeowners association. After gaining written approval, I had my Shadow Box fence installed in August of 2000.

In October 2000, I received a letter from the Homeowner's Association stating the style of fence (Shadow Box) that I have erected has been approved, however, the spacing between the slats is not up to code with the CC&Rs for the development. They wanted me to remove the slats of the fence to meet the guidelines.

I immediatley replied back to the Homeowner's assoication in writing that the style of fence (Shadow Box) was clearly described on the Request for Architectural Approval form and approved. I never heard back from them and thought the matter was over with.

This past week (11/7/01 - over a year later) I received a second letter stating I was in violation and I had to meet their compliance immediately.

I don't want to reconfigure my fence since I had approval for that style. Shadow box fences are very common and they should of disapproved my request from the get-go when reviewing my request. I spent well over a $1,000 more on this type of fence over a picket fence. And I don't want to incur the additional expense to fix the fence they way they want it. Any advice??? Thanks!

 

[I AM ALWAYS LIABLE]

I am a homeowner in NC with a Homeowner's Association. In August of 2000, I submitted a Request for Architectural Approval for a Shadow Box fence. This request was approved by the Homeowners association. After gaining written approval, I had my Shadow Box fence installed in August of 2000.

In October 2000, I received a letter from the Homeowner's Association stating the style of fence (Shadow Box) that I have erected has been approved, however, the spacing between the slats is not up to code with the CC&Rs for the development. They wanted me to remove the slats of the fence to meet the guidelines.

I immediatley replied back to the Homeowner's assoication in writing that the style of fence (Shadow Box) was clearly described on the Request for Architectural Approval form and approved. I never heard back from them and thought the matter was over with.

This past week (11/7/01 - over a year later) I received a second letter stating I was in violation and I had to meet their compliance immediately.

I don't want to reconfigure my fence since I had approval for that style. Shadow box fences are very common and they should of disapproved my request from the get-go when reviewing my request. I spent well over a $1,000 more on this type of fence over a picket fence. And I don't want to incur the additional expense to fix the fence they way they want it. Any advice??? Thanks!

My response:

I think you'll agree that any "style" of fencing can have differing "variations" of that style, and still be considered a Shadow Box fence. So, my questions to you are these - -

1. Were the exact dimensions stated on the Request for Architectural Approval form; e.g., did you or your builder attach the measured plans to the Request ?

2. Were the CC&R's consulted by your builder to make sure his plans conformed to the Conditions, Covenants & Restrictions ?

3. Did the final fence dimensions meet the drawn and submitted construction plans ?

4. Where do you believe the miscommunication occurred ?

Please answer each of these questions.

IAAL

 

[janew228]

Dear IAAL:

First, thanks for your well thought out response. I appreciate your feedback.

I do agree the styles of fencing can have differing "variations" of their styles, but I don't believe this is the case for the Shadow Box style. This style is a standard configuration. In my research on this style the only variation I have found was one or two inches of spacing between the slats which still wouldn't satisfy the requirements for the CC&Rs. Please see capitalfence.tripod.com/shadowbox.htm for an example of Shadow Box fencing or just do a search on Shadow Box Fence on yahoo.com and you will discover there really is no variation in style.

The CC&Rs requirement states that "Perimeter fencing shall not have more than 70% of any of its surface closed as viewed from a point on a line of sight perpendicular of the line of the fence."

The following are replies to your questions:

1. No, the exact dimensions were not stated on the Request for Architectural Approval form. I just stated "Shadow Box Style Fence".

2. No the fence contractor did not consult the CC&Rs. I thought having written approval by the HOA gave me the right to construct this type of fence.

3. The HOA did not ask for final fence dimensions drawings/construction plans.

4. I thoughly communicated with the HOA's office during the approval process. During my first attempt in obtaining approval they lost my Request for Architectural Approval Form. When I submitted the second time, I called their office twice to make sure they received my form and if everything was in order on the form. The office worker said she would follow-up with me if anything was not in order. The office worker actually gave me a call on August 19, 2000 to tell me the approval committee approved the request and was putting the form in the mail to me that day. I think the HOA assoication just plainly put "screwed up" which should not reflect with me fixing their mistake. I also heard after the installation of my fence from a fencing contractor that my neighbor tried to put up a Shadow Box fence prior to mine and they were denied. On the Request for Architectural approval form it states "The committee reserves the right to request more information to clarify this request." They never asked for further information even after my follow-up calls to them. Go figure!!!!

 

[I AM ALWAYS LIABLE]

My response:

I must presume that, when viewing your fence, the following is a true statement of your fence's conformity:

"Perimeter fencing shall not have more than 70% of any of its surface closed as viewed from a point on a line of sight perpendicular of the line of the fence."

If that's the case, and in conjunction with their approval, then it appears that you have done everything required of you in this matter. Their approval, as long as it's not a "qualified approval", would seem to be the end of your responsibilities and have satisfied their rules, regulations and the CC&R's.

You relied on their approval to your detriment and, if the mistake is theirs, then it is they who must bear the burden of "repair" to conform to such rules, regulations and CC&R's.

Tell them you are satisfied with your end of the bargain, and that all of your paperwork and approvals are evidence of their initial satisfaction - - that you depended upon to spend your money to your detriment. Inform the Board that if they are now dissatisfied with their approval decision, that they have every right to explain it to a judge. Further explain to the Board that should they lose their case, that you will enforce your right to reimbursement of litigation costs, and Attorney's fees.

Good luck to you.

IAAL

 

[janew228]

Dear IAAL,

Once again, thanks for your input over my dispute! As far as the below statement, my fence does not conform to their guidelines. That's the problem - they granted me approval (three member of the HOA signed the approval for my request) for a Shadow Box fence but it doesn't meet their below standard, therefore, they want me to reconfigure my fence.

I must presume that, when viewing your fence, the following is a true statement of your fence's conformity:

"Perimeter fencing shall not have more than 70% of any of its surface closed as viewed from a point on a line of sight perpendicular of the line of the fence."

Do you think I still have a fighting chance with my approval the HOA granted even though it doesn't meet their guideline?

Jane

 

[I AM ALWAYS LIABLE]

My response:

Based upon your latest post, above, then it appears that your initial approval was a "qualified" approval - - which was to be fully and finally granted upon final HOA inspection of the completed fence.

Since that appears to be the problem, along with your admission that your fence does not meet with the requirements of the CC&R construction requirement quoted above, then sadly, your fence does not conform and must be repaired to conform at your own expense.

The HOA is saying that you had an obligation to make sure that your builder was informed about the CC&R requirements, and to construct the fence to conform thereto. Somewhere, then, the lines of understanding, communication, conformance to the CC&R requirements, and your builder broke down. Assuming your builder was not shown the required specifications, then it appears you will be shouldering the expense involved in your fence's conformance to the rules.

IAAL

 

[janew228]

Your time time and advice is appreciated. I'll let you know the outcome............