HOA states fence not in compliance

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CptSavAHo said:   HOA is backpeddling they know they cant win. I vote you up the ante and threaten to take them to court if they dont grandfather the fence.I would say that you should never unnecessarily back the other side into a corner. The HOA may or may not know that they can't win (we really don't have enough facts here and I doubt that the HOA does either) but it really doesn't have all that much to do with the OP's issue.

These are the OP's neighbors that he is dealing with, so issuing litigation threats (particularly in a situation where he presumably can't back them up but even if he could) should really be his last resort. They've already said that they won't pursue the fence issue "at this time," which is kind of the way that most of these unofficial disputes tend to end. We don't have enough facts here to decide whether it's worth the OP's time to keep pushing for definitive resolution, but, if it is, his first step should be to talk to them (directly to the Board, not to the management company), explain his concerns and to see what can be worked out.

Crazytree said:   HOAs are good for you, remember?Petty Tyrants of the world agrees.

geo123 said:   HOA is backpeddling they know they cant win. I vote you up the ante and threaten to take them to court if they dont grandfather the fence.I would say that you should never unnecessarily back the other side into a corner. The HOA may or may not know that they can't win (we really don't have enough facts here and I doubt that the HOA does either) but it really doesn't have all that much to do with the OP's issue.

Agree. Start with the board. If you have a management company, skip them, go right to the board... which can be difficult in some neighborhoods.
The issue could be that the board wasn't aware of the pre-existance of the fence. Play nice initially!

Al3xK said:   Does the fence look like shit or something to cause this?

Can you answer this? We always have this hate for HOA's, but if you have some ghetto fence that's in disrepair, I'm sure as a neighbor I'd pester the HOA to make you do something about it.

Does it stand out as 'odd' compared to other houses?

Al3xK said:   
Can you answer this? We always have this hate for HOA's, but if you have some ghetto fence that's in disrepair, I'm sure as a neighbor I'd pester the HOA to make you do something about it.


It matters not in this case. The HOA cannot enforce on structures that pre-existed prior to their restrictions.
It only matters:
1) If he's attempting to repair the fence in a manner that is inconsistent with original design.
2) He's trying to replace it.

The fence has some black staining because we live in the pacific northwest; but it's not like there is moss hanging all over it. The gate was sagging a bit and we just spent $900 to have it fixed up, again, that seems a reasonable request to me. we'll clean it and stain it this summer.

I don't want any encumbrances when I try to sell. The house is desireable but in a price range where there won't be a ton of traffic; I can't afford to have someone walk away because of the prospect of needing to spend $30,000 on a fence. I need to know what to disclose to a potential buyer.

dishdude said:   DaGimp said:   Thank god my property doesn't belong to a HOA. Everyone will start whining until they get your house looking exactly like theirs.

Grass a little tall - whine/complaints
Paint peeling a little - whine/complaints
Dog runs out of yard - whine/complaints
Car a little loud? - whine/complaints

And on and on, if you value your right to do "whatever" you want, avoid HOA.


Good, I don't want to look at your unkept lawn, with your house that has faded paint and rotting wood while your rottweiler is biting kids and you have your redneck 1978 F-150 with glasspack mufflers parked on the lawn.

Ironically, short of the paint peeling a little, these are all likely county code violations and you can be fined by the county a whole lot faster than any HOA action.

OP simply needs something in writing from the board/Mgmnt Co. showing compliance. In our HOA we have simply asked that the homeowner submit a new Architectural Review Form for approval as a formality. It may just be an oversight, as it's amazing how much homeowner paperwork gets "lost" when transitioning from the builder to HOA control and if/when Mgmt company changes take place.

What is even more amazing is how little HOA's and their lawyers know about their obligations under federal law. Out of state bank account for the HOA gotta register with the SEC. Deed restrictions violate the Public Utility Regulatory Purposes Act of 1978 probably 95% of the time(only FERC has jurisdiction over solar panels Supreme Court says state, local laws and deed restrictions are preempted.), Restrictions on for sale signs violate the Fair Housing Act. I have met two HOA lawyers I consider competent in 35 years.

unrelated update:

The head of the architectural control committee - the one who asked me to fix the fence - emailed me asking if they could "remove a dead tree on such and such street. The tree is on your property. We were hoping to do it this week."

I wrote back saying I was not sure the tree was on my property and did not give permission to have it cut down. This is a true statement - the boundary line is unknown to me.

This morning I woke up and I'll be damned if the tree isn't cut down.

What the hell?

Lawyers: if the tree is on my property, tell me how to leverage this into something useful with regards to the fence.

psychtobe said:   
This morning I woke up and I'll be damned if the tree isn't cut down.


You did not hear the chain saws??

No. Don't know when they did it, and we have a 1 acre property.

skagen said:   My wife is a member of the HOA and I've tended to from an opinion on things like this.

When buying the house, you should have been privvy to the HOA regulations; in fact, we have ours publicly posted. I guess I would say, while the HOA regs are a pain to read it's up to you in many respects to make yourself aware of them when buying the house.

I absolutely agree that 99% of buyers may have bought the house without recognizing the fence was against passed HOA regulations. I do think many HOA regs make sense; you didn't really go into detail as to how aesthetically pleasing the fence is. Sometimes HOAs pay pass regs to try to fix problems they don't want replicated. Is the wooden fence beautiful or crappy looking? If it's the former, I wager you can get a grandfathered waiver.

In the end, I've seen neighbors of mine totally neglect their yards as well as have one neighbor from China turn their backyard into a jungle for agriculture purposes. Like it or not HOAs are right for some people and wrong for others. When one buys into an HOA, they need to be aware that standards will be imposed upon them - like it or not. Totally appreciate that it may not seem fair but in the end if you buy into an HOA you get the good and (from what I have seen as general FW sentiment) the bad as well.

I thought the title company checks for any outstanding items with the HOA.

psychtobe said:   unrelated update:

The head of the architectural control committee - the one who asked me to fix the fence - emailed me asking if they could "remove a dead tree on such and such street. The tree is on your property. We were hoping to do it this week."

I wrote back saying I was not sure the tree was on my property and did not give permission to have it cut down. This is a true statement - the boundary line is unknown to me.

This morning I woke up and I'll be damned if the tree isn't cut down.

What the hell?

Lawyers: if the tree is on my property, tell me how to leverage this into something useful with regards to the fence.

Well first you'd need a survey to see whether or not it was on your property. Because if its not your property they didnt need your permission (and even if it was your property, they might not have needed your permission if it was a hazard )

Are you ready to spend for a survey ?

If the tree is on your property: http://www.fatwallet.com/forums/finance/1197688/

SUCKISSTAPLES said:   

Are you ready to spend for a survey ?


Apparently not, since he hasn't even yet sent a letter (or had a lawyer send a letter) to get the fence grandfathered.

psychtobe said:   unrelated update:

The head of the architectural control committee - the one who asked me to fix the fence - emailed me asking if they could "remove a dead tree on such and such street. The tree is on your property. We were hoping to do it this week."

I wrote back saying I was not sure the tree was on my property and did not give permission to have it cut down. This is a true statement - the boundary line is unknown to me.

This morning I woke up and I'll be damned if the tree isn't cut down.

What the hell?

Lawyers: if the tree is on my property, tell me how to leverage this into something useful with regards to the fence.


OP: Update us on the fence issue. Have you told the HOA that the fence existed prior to CC&R? If true, this is an absolute defense.

The HOA has the right (in most circumstances) to take maintenance action with our without your permission. This is fundamental in *most* associations. IF they think it was on your property, they'll probably send you a bill.
BTW - you bought the house. Your purchase included a survey... Read it.

nsdp said:   only FERC has jurisdiction over solar panels Supreme Court says state, local laws and deed restrictions are preempted

Somebody should tell Texas, Illinois, and a whole bunch of other states, who are updating their state laws to make it clear that HOAs can't ban solar panels. If all their work is pointless, since they're preempted (are you trying to extend FERC v. Mississippi to this issue?), they could save themselves a lot of wasted effort.

nsdp said:   only FERC has jurisdiction over solar panels Supreme Court says state, local laws and deed restrictions are preempted.)

Have caselaw on this? I can't find any. This would be huge in Texas as most of the HOAs that I run into are actively regulating solar and are making it real hard to install.. IE - disallowing it from the front of the house, even if that house faces south.

Even if I read FERC v. Mississippi broadly and apply it to solar, it's not going to do much to prevent HOAs from restricting the positioning of solar arrays on homes, etc...

FERC has recently started enforcement proceedings. The problem for the HOA is that they have no state law basis to enforce the ban as the state law that would give jurisdiction to the state court is preempted.

Having been present for the oral arguments on this one the key is what sliver of juridiction did Congress leave for the states. Very clearly permitting siting and environmental permits are preempted. Headnote: " Insofar as 210 authorizes the FERC to exempt qualified power facilities from state laws and regulations, it does nothing more than pre-empt conflicting state enactments in the traditional way. Because of the substantial interstate effect of such activity, Congress may pre-empt the States completely in the regulation of retail sales by electric and gas utilities and of transactions between such utilities and cogenerators. With respect to 210's requirement that state authorities implement FERC's rules, the statute and its implementing regulations simply require state commissions to settle disputes arising under the statute, the very type of adjudicatory activity customarily engaged in by the Mississippi Public Service Commission." Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967. Pp.759-761.

Now if you go read the regulations and commentary FERC has promulgated there is absolutely no room for the state or any of its sub entities to do anything except resolve rate disputes. You have to go three places to get the whole picture. PURPA, the Supreme Court and the CFR's.

"In order to overcome the first of these perceived problems, 210(a) directs FERC, in consultation with state regulatory authorities, to promulgate "such rules as it determines necessary to encourage cogeneration and small power production," including rules requiring utilities to offer to sell electricity to, and purchase electricity from, qualifying cogeneration and small power production facilities. Section 210(f), 16 U.S.C. 824a-3(f), requires each state regulatory authority and nonregulated utility to implement FERC's rules. "

"The difficulty with these arguments is that they disregard entirely the specific congressional finding, in 2 of the Act, 16 U.S.C. 2601, that the regulated activities have an immediate effect on interstate commerce. Congress there determined that "the protection of the public health, safety, and welfare, the preservation of national security, and the proper exercise of congressional authority under the Constitution to regulate interstate commerce require," among other things, a program for increased conservation of electric energy, increased efficiency in the use of facilities and resources by electricity utilities, and equitable retail rates for electricity consumers, as well as a program to improve the wholesale distribution of electric energy, and a program for the conservation of natural gas while ensuring that rates to gas consumers are equitable. 16 U.S.C. 2601. The findings, thus, are clear and specific."

The Congress has clearly taken away any rights of the states or any one using the laws of the states to violate section 210 of PURPA. It is the same argument that the Supreme Court used to eliminate color bans on sales of homes under the Fair Housing Act. One of Justice Blackmun's questions to Mr Alston was he suggesting that the Fair Housing Act's abolition of deed restrictions against sales to Blacks and Hispanics was unconstitutional? The answer is no. Here Congress in its findings has abolished any and all obstructions to the construction and connection of Qualifying Facilities. Since you would be less than 10MW qualification is automatic. Exceptions were granted narrowly by Congress not broadly. The HOA has to show that they fit within the exception. German rules apply; the HOA's action is forbidden unless expressed permitted. In my case the subdivision was platted(Dec 19878) after PURPA was passed in Nov. 1978.

dcg9381, If you really want to get the HOA's attention on solar panels file a complaint at the FERC. The fine is up to $25k per day and they have to pay your attorney fees. They will also have to hire an attorney that is a member of the Energy Bar Association. Send them a demand letter first to make the violation a willful and intentional violation. Their local yokel will not be able to file an answer for them. FERC currently has enforcement actions pending against Idaho Power and the State of Idaho PSC for contempt and a show cause proceeding against the Montana PSC to show why it should not be held in contempt. http://www.natlawreview.com/article/ferc-declares-proposed-wind-...

nsdp said:   

dcg9381, If you really want to get the HOA's attention on solar panels file a complaint at the FERC. The fine is up to $25k per day and they have to pay your attorney fees. They will also have to hire an attorney that is a member of the Energy Bar Association. Send them a demand letter first to make the violation a willful and intentional violation. Their local yokel will not be able to file an answer for them. FERC currently has enforcement actions pending against Idaho Power and the State of Idaho PSC for contempt and a show cause proceeding against the Montana PSC to show why it should not be held in contempt. http://www.natlawreview.com/article/ferc-declares-proposed-wind-...



I appreciate your information - I was getting excited for a second. Until there is active caselaw on the books - such as successful enforcement, I don't consider it a "decided" issue.

I'm on both sides of this - I've been on an HOA board (mainly to keep that madness in check). I install residential solar (hobby). I want to see HOAs inhibited from enforcing solar - just like antennas and political signs, however, I take a few issues with your advice:
1) Involving my HOA in litigation costs everyone in the neighborhood... This issue clearly isn't "decided" and I dunno if I would want to be that first litigation case.
2) Most HOAs aren't blanket prohibiting power production - they're just making it hard to install a solid performing system. A system that faces west (we'll say out of the view of the street) may perform 50% as well as one that faces South, but they've got a valid argument that they're not "inhibiting" power production. I think this is a pretty valid argument in context.. I don't like it, but it probably addresses both sides.
3) The "local yokel" will file an answer for them.. Or he'll spend hours finding an appropriate peer in the Energy Bar Association - and the association gets billed for it either way, trust me...


I take it you're also indicating that HOAs, local municipalities, and states can't inhibit wind power either? That's potentially a much bigger issue.. I can just see someone running up a big 300' turbine in his $1M+ neighborhood...

After the decision in Idaho Power, we know exactly what rights still belong to the state commissions and courts and hence the HOA's. It takes a special regulation to allow state or local entities to enforce the National Electric Code on small power producers. The expansive way the FERC powers are defined and the regulations are written, the HOA has to prove that it does not impinge on the design(prove it is not guilty). If they cut output by even 1/2% they are losers. Again read the CFRs and the cases in the FERC reporter. Those stand just as a district court case. Appeals under PURPA go directly to the DC Circuit not to a district court. That is where the Idaho PUC is appealing their conviction. As for the expenses, Rule 11 orders those to be paid by the architectural committee /board members personally unless the association has errors and omissions coverage. The FERC is pretty good about seeing that the proper persons get punished. The HOA will be barred from reimbursing the board members and architectural committee for knowing violations. Those costs cannot be passed on to the membership at large. That usually clears the minds of even the most obdurate board member. I know how funky some boards and members can be. I was president of the largest HOA in Colorado for 3 years.

On the last FERC buckled on wind turbines and allows local zoning to proceed, but appeals are to the FERC not to state court. No one on either side has been willing to take one that far yet. The solar panels I have are on the front of the house facing the street. My HOA didn't have the guts to buck me when they found out what the regulations were. I copied them and highlighted the appropriate sections and gave them to the president.

Your HOA president is smarter than most... I'll wait for the HOA vs. ?? myself... thanks for the cite.

Andri77 said:   Aagiants said:   Does anyone have more positive aspects of HOA? I dont own, but am getting turned off from ever owning a place with an HOA

I live in a large (2-3 sq miles of small-medium residential lots) HOA in AZ. Although I do get annoyed by the "friendly" HOA reminders to pull our weeds or trim trees - to be fair they are usually right - (and more than annoyed when I got the notice to trim *my neighbors* tree but that got cleared up with a phone call), I am happy to live in an HOA.

For less than $500 per year,
- my neighborhoods stays pretty clean and neat - yards neat, cars and various big boy toys stored out of the street, etc,
- there are three swimming pools, a splash pad and about a dozen tennis courts in various locations that are all free to use. There is also a minimalist gym facility also but i have never used it.
- there are several parks that are well maintained with play structures and basketball/volleyball
- there are "lakes" for boating and fishing
- There are several large annual free neighborhood events (halloween and easter carnivals), and some more smaller scale ones that are free or cheap like a winter activity, movies in the park, etc
- quite a few cheap or free monthly social events from exercise classes to poker,
- the community sponsors a summer community swim team and a day care center that provides FT under 5 care and school break under 12 care at reasonable rates
- monthly community newspaper
- access to a neighborhood garden for a nominal fee that covers water and fertilizer
- reduced room rental rates at two different community centers
- reduced event tickets to local movie theaters and various other local events (group pricing without forming a group)


That's one great f-ing HOA, and with an excellent price.

geo123 said:   CptSavAHo said:   HOA is backpeddling they know they cant win. I vote you up the ante and threaten to take them to court if they dont grandfather the fence.I would say that you should never unnecessarily back the other side into a corner. The HOA may or may not know that they can't win (we really don't have enough facts here and I doubt that the HOA does either) but it really doesn't have all that much to do with the OP's issue.

These are the OP's neighbors that he is dealing with, so issuing litigation threats (particularly in a situation where he presumably can't back them up but even if he could) should really be his last resort. They've already said that they won't pursue the fence issue "at this time," which is kind of the way that most of these unofficial disputes tend to end. We don't have enough facts here to decide whether it's worth the OP's time to keep pushing for definitive resolution, but, if it is, his first step should be to talk to them (directly to the Board, not to the management company), explain his concerns and to see what can be worked out.


This is very smart advice. I would call this, the reasonable principle, or the principle of acting reasonably.

Of course, this would be excellent, if it were bilateral. If you have unreasonable people running the HOA, IMO they need to pay.

tolamapS said:    If you have unreasonable people running the HOA, IMO they need to pay.

Good luck with that.. At least in my state, they're indemnified... They can act as unreasonable as they want - they're insured by the association and "represent" the association. Be very careful who you elect...

Like the poster above me, I now live a very reasonable POA that simply exists to maintain common property with no ability to regulate individual property...

I'm keeping this bumped and out of archive. The saga continues, we had a compromise but on a point of clarification now they want to go back to the ACC and the compromise is not established firmly yet. Their delaying is going to cost us the short summer window to get staining done.

psychtobe said:   I'm keeping this bumped and out of archive. The saga continues, we had a compromise but on a point of clarification now they want to go back to the ACC and the compromise is not established firmly yet. Their delaying is going to cost us the short summer window to get staining done.

Good.

The HOA has been so sporadic and random that the longer you can delay, the better. Eventually they'll lose interest. Start setting up regular progress discussions with them, perhaps every other month. At each meeting, discuss different options and paths you could take. They'll lose track and I bet they just give up.

StevenColorado said:   
The HOA has been so sporadic and random that the longer you can delay, the better. Eventually they'll lose interest. Start setting up regular progress discussions with them, perhaps every other month. At each meeting, discuss different options and paths you could take. They'll lose track and I bet they just give up.


They'll lose interest until a new board takes over, then it can start again... Get the resolution in writing.
You're rock solid if the fence existed prior to CC&R, but an unreasonable HOA can make it very expensive.

Cities and local agencies got zapped by the US Supreme Court in City of Arlington vs FCC City of San Antonio joined the case. FCC regs require municipalities to issue zoning permits for cell towers within a period set by FCC regulations. Anyone who processes permits must grant them or be held in contempt. http://www.law.cornell.edu/supct/cert/11-1545 As a practical matter the criteria under the regulations for local denial of a zoning permit is almost impossible to meet. The only one I can think of is that the cell impinges on a preexisitng state or local park or a locality in the National Register of Historic Places. There is no comparable section preserving any zoning authority for local jurisdictions under PURPA only rate authority for the state PUC. The decision was 6-3 and since it takes 4 votes for Cert, the Supreme Court took the case to hammer home the point that when Congress preempts the field, states and local jurisdictions only have what residual authority Congress left them. Never enough votes to consider overturning the 5th Circuit opinion. This case is hitting the mule between the eyes with a 4x4 to get his attention.

Same rules will apply to HOAs. Most of those didn't exist on November 8, 1978 so they never had permitting authority to start with. Congress had already occupied the field and taken it away.



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