Can HOA Require Owner to Put up a Fence?
Understanding the Governing Documents
Your community association must abide by its governing documents. While the board can enact rules and guidelines to carry out its duties in managing your community, it cannot simply add new requirements not supported by the governing documents.
Enforcing Existing Rules
For example, if your community allows fences, the board can enact architectural guidelines specifying the style and color of the fence. However, unless fences are required in your governing documents, the board cannot mandate everyone needs to install one. To be able to do this, the community as a whole would need to follow the proper procedures to change those documents.
Equality in Enforcement
A community association may not selectively enforce the rules. What is good for one resident should be good for them all. The board can start enforcement, but it must ensure that all residents are treated equally.
Reviewing Governing Documents
Unless the governing documents require your fiancé to fence his yard, he likely will not have to. To find out, review all of the governing documents, not just the excerpt the management company mailed you. Just because the requirement was not in that snippet does not mean it is not elsewhere.
Landscaping Guidelines
The board likely has the right to enforce landscaping guidelines, including limiting what can be planted and where. The owner of the property where the bushes are planted is responsible for their care, so if they are planted on common area, the community will need to maintain them, not your fiancé. Again, check the governing documents because some even require the association to take care of the landscaping for the owners, which sounds like it may be the case from what you described.
Communicating with the Board
After reviewing the governing documents and learning his rights, your fiancé should communicate his concerns, and politely point out where the board is overstepping. The idea is to work with his community to resolve this issue before it becomes a problem. The board may think it has the right to do what it is doing, and may be able to point out something in the documents you missed.
Conclusion
It is better to find this out in a conversation than after fines accrue and lawyers get involved. If the board is overstepping its authority, community members can also enforce the governing documents.
FAQs
Q: Can my community association require me to put up a fence?
A: No, unless it is specifically required in your governing documents.
Q: Can the board enforce existing rules?
A: Yes, but they must ensure that all residents are treated equally.
Q: What should I do if I receive a violation letter from the board?
A: Review your governing documents, communicate with the board, and politely point out where they are overstepping.
Q: Can I enforce the governing documents if the board is overstepping its authority?
A: Yes, as a community member, you have the right to enforce the governing documents.
Q: Who can help me understand my rights and the governing documents?
A: A board-certified real estate lawyer, such as Gary Singer, can assist you in understanding your rights and the governing documents.
