Board Looking to Pass Restrictive Fence Resolution – Part 2

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Late Monday night, the night before the Board meeting, the Association posted the proposed Fence Resolution. As you might remember from my last fences article, this resolution, if passed, will prevent members from building fences within five feet of their property lines without a signed agreement with their neighbor. Moreover, this resolution is an interpretation of the Covenant, meaning that hundreds of existing fences could be non-compliant and subject to neighbor complaints, and possible Association fines.

Click here to read the proposed resolution.

As you may recall, two CDRC members stood up in the meeting and objected to this resolution on several grounds. The Board minutes from that meeting make no mention of this significant input and/or disagreement, making the minutes deficient in my mind. 

Following are some issues I see with this resolution.

Historical 

This is not the way we have built fences during the past 90 years. San Diego County ordinances, for instance, certainly do not prohibit fences within a 5 yard set back. Historically, the only time our building commissioners have requested a signed agreement between neighbors is when a fence is directly on the property line. People have typically built fences a few feet off the property line so as to not run into measurement issues. 

There must be hundreds of existing fences in the Covenant that are not compliant with this five foot set back. Since this is a Covenant interpretation, it holds out the possibility of that annoying neighbor of yours calling your fence non-compliant and subject to Association action. While the resolution says “new” fences, you’d have to do mental jiu-jitsu to interpret a 90 year old contract provision that only applies from July 2, 2019 onwards, but doesn’t apply to dates before then. I really don’t think that’s how contract law works.

Unsightly

The logical outcome of this rule is parallel fence lines with a 10 foot no man’s land between them. This is ugly. The no man’s land ends up unmaintained and a good place for vermin and coyotes to live.

Adverse Possession

Suppose you are the only person to build a fence along your property line, five feet in. If the neighbor uses his property and five feet of your property as if it were his (for instance, he has a dog and allows the dog to roam freely up to your fence), then, over time, your neighbor has just won adverse possession of a five foot strip of your land. The only way to prevent this scenario from occurring is to, you guessed it, build a fence on your actual property line.

What’s The Benefit?

Who does this interpretation help? Why is the Board pushing this? I can see no benefit to homeowners, and lots of downsides.

Legal Challenges

This is an odd way of interpreting the Covenant, to say the least. While the Association has a legal opinion about their interpretation, legal opinions are not law. This interpretation sets the Association up for a lawsuit since, if the Association’s interpretation is not correct, it can be thought of as an illegal taking.

CDRC Opposition

The cherry on top of this imbroglio is that the CDRC is against this resolution. Two CDRC members stood up at the last Board meeting and made several arguments why this resolution should not be passed. The least the Board could do is to work with the CDRC to find common ground.


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