No, we are in Alabama.

Ugh, Allison, that really stinks!! I have nothing to offer except sympathy.

Here's a link you might try. When I searched their forums I saw no activity in alabama, but nationwide there's a great deal going on. AARP is on the bandwagon for helping homeowners since it's a major issue with us (me) older homeowners.

My only other advice would be to do some more research on your own and make NO responses to your HOA. Then find a local lawyer who has experience with HOAs (your state bar will probably have a referral system if you don't have an attorney who can recommend someone with this experience). Get your lawyer and tell him/her that you want to avoid a legal battle. Manage your lawyer or you'll let him generate fees for himself by stirring you into an adversarial position.

His first task is to tell you what to say when you are next asked to respond to your HOA. The last legal matter I was involved in, I had my attorney write a letter that I wanted to send. It sounded like it came from an attorney, so I called him and said "make this sound like it comes from a civilian." LOL. Finally, we edited a letter for ME to send (less adversarial than letting him send it). That's how I deal with situations to avoid legal battles. Use your lawyer early and in a preventative way.

Here is a link that might be useful: homeowners resource center

Pinktoes - no, I agree. First (or second) letter should not come directly from an attorney...but it/they need to be good. I don't want to sound threatening, because I'm not - yet.

Their letter was sent regular mail, states that we violated the code and asks us to "reconstruct" the fencing that does not follow the guideline. It gives no date as to when it should be resolved, says to call if questions/concerns, ignore if corrected already or give them a time frame when it will be done if not asap.

Would you email me? You don't have an email link. TIA

You started it within the 6 month timeframe and constructed it according to the approval. Case closed. Years of legal work tell me that would be my main argument before the "they can't ask us to do something they don't ask of thers." Not that that is not true, I just think it should be the secondary argument. Good luck.

Good luck with this! Since everyone who has seen your fence has liked it and since you had previously been granted approval for the fence, hopefully it will all end well and quickly. One thing to note, most of the covenants and ARB (or ARC in your case) materials that I have seen generally have a few statements included which allow them some right to actually be selective in enforcing the covenants. Some of these statements might be "the committee may seem arbitrary at times, but are committed to their work" or "each individual house and property are considered independently of any others." And, then there is sometimes a statement regarding a time frame for changes, ie. it would be more logical for them to ask you to change something that is out of compliance with the covenants since you just built the fence than for them to have the neighbors change something on their house that has been there for 2 years, regardless of whether or not that is even a larger infraction against the covenants.
Not an attorney here, but I think your biggest case is the fact that they gave permission and that they observed the fence being built with no complaints. They had the opportunity to stop you at that time, but did not do so.

We live in a gated community too with a completely over-the-top ARB...in fact ours is made up of only the developer with no homeowner input...they are completely selective in the enforcement of the covenants. Generally the larger the house, the less enforcement! However, the way our covenants are written, they are within their right to be selective. But, I agree with you...they do more good than bad, and they generally have a good eye for design.

Dixie, our developer is still in charge. Shouldn't be, but is. They are "on their way out" for two years now.

The ARC seems to not have a good eye for design when they are in a rush, second or third time plan is reviewed and sometimes it seems they just don't care.

I hate to drag the only homeowner on the ARC into it, but she saw the fence during construction and said it looked great. The management company is suppose to drive thru the neighborhood checking on things/construction but when asked how often they drive thru, I never get an answer. Fugly house that's on it's 15mth mth with no end in sight - the rain has been washing the main road away in front of his house (which is at my turn) for MONTHS now....and we've been in a drought. What's going to happen to the road now that the rain has started back up?! The homeowners pay for road repairs and imo, he should be held responsible for paying those repairs - not everyone else in assessments.

Hi Allison,
Sorry I'm late to the party, I just logged on. My experience is more in contracts and not really in real estate law. If I were you, I would spend the money to have an attorney write a letter to them, especially re: selective enforcement, their previous permission to build the fence and the lack of objections for abutters. It would probably cost less than $300, and would be well worth it.

Re: selective enforcement. I would check and make sure there is not a clause in the covenants that allows them to do this. There might be something about failure to enforce certain covenents cannot be raised when they seek to enforce other covenants. Something like that.

IMO, the whole thing smells. Why are they going after your fence when there are other, more serious violations? Some courts have said that HOAs cannot selectively enforce a covenant. However, what they consider selective enforcement can vary widely. I've read where courts have allowed HOAs to basically reinterpret what the covenant means, but as long as they are consistent with everyone it is ok. Very bizarre.

Sorry I couldn't be of more help.

Thanks for checking in, Sue. We're comparing apples to apples on the selective enforcement (fences only), although I have four legal pages (so far) of violations written off the top of my head while reading thru the covenants.

They are not consistent, that's for sure.

I'll tell DH what you said. Thanks for the input.

allison,

One small suggestion, (before using attorney). Why not write them a nice letter stating that obviously there has been a miscommunication since your fence was approved and was started withing the six month window. Include a copy of the approval. You are sorry about the miscommunication and are confident that it is all now cleared up.

If that doesn't fly, then you clearly have a case of selective enforcement and could bring in an attorney.

It can be frustrating enough dealing with municipal authorities. But the arbitrariness of dealing with non-legal minds with legal power boggles my libertarian mind. Fortunately, I've never come across such committees in my area.

But if the horor, (oh the humanity!) of seeing Christmas lights up yearround is too much to take and one applauds rules on such trivialities, how can one much object when the flying fickle finger of fate strikes you where you live (or fence)?

Thirty years ago a citizen "activist" acquaintance of mine suggested all new development should be put to the vote of the existing residents and only if they approved it should it be allowed. I thought that was crazy. Little did I know!

I was being sarcastic, worthy! ;)

Z8G, we started writing a letter tonight. Lady down the street emailed tonight. We'll talk again over the weekend via email.

I'd rather not write specifics (yet) since this is the internet. Thank you everyone for your suggestions. I'll let you know the outcome.

One person's sarcasm is another person's hard time.

Just ask this this recidivist with a brown thumb.

You should of known better. It serves you right. Etc. Just kidding. Here is the the great legal advice from the mind of a carpet installer. Forget about selective enforcement of the rules. Here is the short, sweet letter you should send them.

Thank you for pointing out that my fence does not meet the HOA requirements. I will be than happy to change the fence, providing the material, and labor is payed for by, THE IDIOTS THAT APPROVED MY PLAN.

Sincerely

Ready To Fight

This is why I will never live in a subdivision again. The one I live in doesn't have an active HOA anymore, and that's fine w/ me. We are soon moving to rural SC, with no ARC's, HOA's, not even zoning! I don't care a fig what my neighbors do on their property, as long as it doesn't endanger me or my property. BTW, most states have adopted standard building codes, which actually address things like junk cars and unkempt yards. SC follows IBC 2003, which spells out in detail these issues. So, if you want to be a busybody, you can rat out your neighbors. HOA's are fine for those who want them. The problem is, they are often run by unprofessional petty tyrants, and so are unfair to those they are supposed to protect. As many have posted, it doesn't sound like they have a leg to stand on in this case.

I had time to only glance at the previous posts. I do know that the US Supreme Court has rendered many opinions ranging over many years about laws (statutes) that permit "unfettered discretion". Essentially, laws must be written so that subjectivity on the part of the enforcer is eliminated. HOA regulations often fall outside of much legal oversight and typically do as they please. I would get a good attorney. Once a HOA decides to be your enemy, your finances are going to take a hit!

Many people on here are saying that the OP's defense/response is that the plan was approved. However, I don't believe the OP built the fence as approved. They used 4x4 on the sides, which were not approved. Or did I read that wrong.

If the fence was not built exactly as approved then the defense is selective enforcement, de minimus variation and approval of abutters.

You're funny as always, Bob.

Yes, Sue, you are correct because we went and measured existing fences, the cost is 4 times as much for a 6x6 as a 4x4 and DH could not have installed over 300 6x6 with bad shoulders. We did 6x6 along the road front.

After emailing several times with lady on the ARC (she said she would walk over today, I really don't think she will), we've decided to tell them we will make the 4x4 post 6x6.

I'm going to suggest to DH I call people next door and ask for a letter stating they do not care that the fence post are not facing their direction and take photos showing it cannot be seen from their house.

To have acreage and not be out in the country so far that work commute is ridiculous or worry about break-ins, you pretty much don't have a choice but to live in an HOA community.

Make sure to take photos and document everything.
Your project, other projects, etc.
Take both large photos to document placement of things and close ups with a ruler to show things like post sizes.

One of the touchiest areas in HOA stuff is equal enforcement.
It has gotten a number of them in trouble over the years.
While they can do many thinks, they must be fair in administering the policies, and cannot take capricious actions in a non-uniform manner.

I would simply move.
Life is to short to be fighting with idiots.

I will never ever live in a HOA. It is an erosion of personal property rights. Soem need to live in them as that is all that is available in their community. HOA's are huge in CA.

I have read about(or seen on the news) of a few folks in CA who sued and won to have their properties removed from the HOA's grasp. One man in the sacramento area, won and now messes with the HOA by painting his house strange colors and doing things blatently against the surrounding HOA's rules. He makes the news all the time, some neighbors get mad, others laugh and think it is great. As a pot stirrer, that kind of action sounds like my kind of fun.

I would start by righting letters and trying to work something out. If you are stuck in a HOA, you do not want to piss them off. The can make life no fun real fast.

I'm not interested in turning this into an "I Hate HOAs" "HOAs are Stupid" thread. I made that clear in my first post.

I'm not interested in "simply moving." We moved in only/almost 2yrs ago. We built a custom home that fits us like a glove, love the acreage, the view, we own the best lot with the best view of lake/mountain ridge. It's like being on vacation everyday. We love it. The pets love it. We far enough from town to be out in the country, but close enough to be convenient.

Once we are over this hurdle, there will be nothing more to deal with them about - other than common areas/roads, etc. Once the developer leaves, it will get better, imo.

Sounds like the ARC / HOA has too much time on their hands!!

allison,
One more thought. Have you considered wraping the posts? That would make them 5x5. It couldn't hurt to float that idea to the ARC could it? It'd be a lot less expensive than replacing the posts. And the end result is indistinguishable.

Z8G, Yes, if we wrap on both sides and front they will be 5 3/4" which is what a milled 6x6 PT post equals.

So if you stained the wrapped posts, would that not be acceptable?

Haven't asked but will be doing so.

I might get blasted, but there is another side to the HOA argument. We lived in the beautiful Hudson Valley in NY with no HOA-our neighbors were all WONDERFUL and we all took great pride in our town and personal property. EXCEPT for the one who happened to live next door to me- the yard was a disaster, animals were not contained, no upkeep, etc. The local farmers were horrified! We had a tremendously hard time when we had to sell our home. It took much longer than it should have and we heard constant feedback from potential buyers regarding "those neighbors". We are firm believers in personal property rights, but what about the impact on neighbors who LOSE property value? The sad reality is that town ordinances aren't usually enough and it may take YEARS to get a an issue resolved. My neighbors weren't doing anything illegal-they were just slobs! We now live in NC with an HOA which, like Allison's, is great 99% of the time. All issues have been fairly minor, and they have never been known to bother any homeowner about their property UNLESS a complaint is made by a neighbor about non-compliance. Lots range from very small to almost 3 acres and this is one of the most popular subdivisions in the area with the highest resale. No complaints here. I think Allison has the right mindset-she loves her home and will try to reasonably work it out, though I do think it's unnecessary for her husband to go to any extra work considering it was approved and her neighbors are on board. Good luck Allison, and BTW, your home is gorgeous! I can see why you're so happy there

Allison, I think you should apply to be a reviewer for your HOA! If you can't beat 'em, join 'em, then you can take them down from the inside...

Thank you, Pattiem93.

nycefarm, lol. Only one homeowner is on the ARC. The others are three from the development company and one from the management company. They call in an architect when needed. The unofficial HOA has the same lady as ARC, the man who came with her to see the fence on landscaping, another on finance and the last is faux-Pres. They pretty much self-appointed themselves before an "off the record" HOA meeting we had just over a year ago to discuss the possible development of the ridge/purchase of ridge by developer. No one opposed them volunteering.

We have always found that treated 6x6 posts twist far worse than 4x4's Always use 4x4's and clad them on our jobs now.

Thanks for the info, dixielogs.

I do not know why the ARC specifies the 6x6, but a true 6x6 (as opposed to the clad) will last longer- take more time to decay to failure- than a 4x4 or 4x6 under equal stress.

When only kreosote fencing was required, it was specified as 5x5 posts. PT does not come in 5x5, only 4x4 and 6x6, so they raised it to 6x6 now - whether in kreosote or PT lumber.

4x4 cost $4+ each. 6x6 cost $16+ each. Big difference.

Material treated with Creosote is typically not available to homeowners now.

It is here. It's made locally or you can order out of GA or KY. Now the stuff they make is more black than brown/espresso. One reason they allowed PT to start being used.

How horrible. When we moved to the house we are in now,we were the only house on our street. We applied to the ARC for a wooden 6 ft. privacy fence which was approved. The boards on the street side were faced outward so you could not see the posts but my husband told the fence co. to face the boards inwards on the back side (we are on an island between two streets so this could be seen, once the houses were up behind us you couldn't see it). This is typically how fences were done in the last two neighborhoods we lived in, we received a letter saying this was against the policy of the neighborhood because it was not consistant all the way around and we had 10 days to fix it. We contacted the fence co. and it was going to cost $2000 to fix and destroy a ton of boards (screwed on not nailed). I sat down and read and reread the covenants, no mention of anything like this, I drove through the neighborhood, lots of fences done like this, which I documented. I told a board member I would be contacting a lawyer because they were not reinforcing anyone else (gave her examples)and I had not violated any covenant. I received a phone call from the pres. and vice. pres. of the HOA officially apologizing and they asked if we could just drop all this, I said I would be delighted. But I was tempted to dress like the black sheep of the neighborhood for Halloween!! Our new neighborhood also has an HOA but not nearly as strict, mainly about farm animals, house size and all brick or stone construction, but I still don't know if I am going to put up a fence!!

Update: We made changes to the existing posts and sent an email w/photo to the ARC. Changed post on the left, old post on the right:

{{gwi:1491263}}

Received a letter saying we had to change all the posts between us and the house going up next door (side that runs about 20ft over, along our driveway) and only the posts on the other side of the driveway where it shows at main street and from the lake/to the top of the dam. Changes are complete and staining will be finished this weekend. Next on the list - get DH to build me the shutters (that were approved) when we built the house!

Thanks again for your support and advice.

Allison

Allison - it looks nice, sorry you had to go through all that. BTW do you have a closer up of how it looks where the board attaches between the posts? I'm liking your fence and if I can get DH to dig the holes I could probably build the fence. (I could dig too, but would rather not)

Thanks. How the boards attach to the posts? Not sure what you're asking.

Here is the process:

Set post. Attach horizontal boards. At the back of each post, you place a cover board to the horizontal boards (runs parallel to the post) to cover nails and/or cuts in the horizontal boards (some boards can be run two fence lengths and some have to be cut. All depends on the ground).

Hope this answers your question. If not, I'll try again.

We rented a hole digger from Home Depot. The holes are about 20" deep. The posts are 54" above ground.

Glad to hear it worked out. Thanks for the update. We put up a small fence this weekend and it got me to wondering how things were going with you.

Allison, What I'm wondering is how the horizontal boards are set into the posts. Does the posts have slots that they run through or are they nailed to the post on the side?

When I look at the left and the right, I can't believe how nit-picky the ARC was. It isn't THAT different! Congratulations on getting through it.

Cameron

Nevermind I figured it out. Nailed to post and then cover board. Seems simple enough besides digging the holes. That part I don't like. Did you use cedar or treated wood?

What a pain but I have to say I like the wider post much better.

I like wider posts too. DH would have never been able to put in over 200 6x6 by himself though.

Lyfia, yes - the horizontal boards are nailed to the back of the posts. This fence was built using pressure treated lumber.

Lyfia, here is a photo of the backside. This fence was installed during construction and is made from creosote, which was spec'd originally but is harder to get in our area now so they've changed/included PT lumber.

{{gwi:1491264}}

You caved? I'm so disappointed, all that military training, what a waste. Those are some fine lookin posts though. I guess if you're happy, then I am too.

Caved?! The first letter was requesting we "reconstruct" the fence - as in tear it down and start over. ARC Lady even asked me if we had a bulldozer lined up.

My military training comes in handy when rattlesnakes and raccoons with distemper show up. ;)

Hi Allison0704,

I came across this thread while looking to see if you had posted other pics of your beautiful house. I read everyone raving about your kitchen and found those photos. It is absolutely beautiful! I can see why you are happy in your home.

My job puts me in the middle of your type of situation, between the ARC and the homeowner. I manage an Association and their facilities in Georgia. Given that I have not read your governing documents, but having read your posts, I would say there were probably lots of mistakes made on behalf of the Association. I'm glad that you have worked things out to your satisfaction.

Unfortunately, volunteer homeowners, whether on the ARC or Board of Directors, are considered the "scum of the earth" by some residents. Seldom have I met any who is there for reasons other than the "good of the community." The more homeowners become involved with the running of the Association, PRIOR to the developer leaving, the better off your Association will be in the long run.

Developers have total control until they turn operations over to the homeowner HOA. Those departure circumstances should be documented in the covenants. Usually, that will be upon reaching a certain number of years or when there is only a small percentage of properties unsold. I do not want to paint a broad brush of all developers, but some have been known to leave HOAs totally bankrupt. It can be a very difficult situation for the homeowner HOA, if you are not prepared and are surprised by what you find upon their departure. I wish you and your neighbors well.

Again, I'm glad you worked things out and I will continue my search for photos of your beautiful home.

Thanks for your post, ccinga. As far as I know, no one here thinks of the homeowners on the unofficial "board" as scum of the earth...but many of us think that way of the developer. ;)

The meetings are always attended by the same people, mostly those who have built already - of 72 lots, only a few are still owned by the developer. They can stay in control only owning one lot. :( The good news is, they are preparing to turn it over in the near future - maybe 2008. ? Hard to tell right now. It is a large company with newer properties to focus on. Not sure why they are still here - well, for one, the horse trail that was promised from the get-go is just now being finished.

The unofficial board, preparing to take over and working with the developer are the ARC Lady, our future HOA President, a financial person and a landscape person. We're keeping close tabs on the financial statements each year and always have lots of questions.

Thank you for the compliments. We love living here. I've said it a million times - it's like being on vacation everyday.

There are better pictures of my kitchen on the website linked below. Scroll down to the French Gray Island Kitchen.

Here is a link that might be useful: Kitchen Photos - French Gray Island Kitchen