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Jack R.
Jack R., Lawyer
Category: Real Estate Law
Satisfied Customers: 6147
Experience:  Mediator, part of the Ohio Save the Dream Foreclosure project
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I live in Austin, Texas and there is a golf course in my development.

Customer Question

I live in Austin, Texas and there is a golf course in my development. My house is three houses away from a golf cart path and the 7th hole is between the third and fourth home and faces AWAY from the back of my house. My house is backed by "rough" or "out of bounds" area.
When I put my house on the market, we checked with the HOA and after viewing the back yard was told "yes", I could have a 6' wooden fence. (The potential buyer wanted a wooden fence for privacy as they planned to build a pool). When we signed the contract for the sale of the house, one of the written contingencies was that they could put up a wooden fence and that they be approved for a pool. Upon checking again with the HOA (to comply with the contingency), a different HOA person (the newly elected Modifications person) said "NO". That my house was a golf course lot and they could not set a precedent and let everyone do what they wanted. We are not asking that a precedent be set as the house next to me (further away from the 7th hole and on "rough" as well) was granted approval for a wooden fence when they built their house 12 years ago - so the precedent has already been set. We have asked for an appointment with the HOA president so that we could submit our formal Modification Form but have not heard back. Yes, we were told NO based on conversations and emails before we could even present/submit the formal Modification Form.
I've also checked with my neighbor (whose house would share the fence with mine ) and they have no objection to a buyer erecting a wooden fence. They would even go as far as planting greenery along their side of the fence to make it more appealing to any golfers who happened to look behind them into the rough.
Is there anything else we could do? I am going on the assumption that we will eventually be given an appointment to submit our formal Modification.
Thank you for your attention to this matter.
RoseMary R.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Jack R. replied 1 year ago.

Thank you for using Just Answer.

 

You should continue with the hearing take pictures of the existing fenced yard and if possible get a mock up of what it would look like with your fence in place.. You can also ask the request be brought to a full HOA meeting for consideration . Many of the By Laws have provisions for bringing questions such as fencing up for review. This may require you to get a petition signed with some minimum number of residents. You will have to read and become familiar with your covenants.

 

I know you wanted a wood fence, perhaps buyer and association could agree on a wrought iron fence. Being from Austin myself I have seem a number of this type of fencing on golf courses.

 

Failing a cooperating HOA , since a neighbor already has a fence you could decide to take the matter to court to force them to allow the fence to go in. Decisions on variances from covenants are either kept consistent or they must be struck. Refusing to allow you to have a fence after it was already previously approved for another may be deemed an arbitrary and capricious denial. Decisions that are arbitrary and capricious are usually not upheld by the courts.

 

Fighting for your right to put in the fence could be a lengthy and expensive process. Covenants are very difficult to get around. Ultimately you could try to get a ore friendly board elected.

 

If you found this answer useful please press the appropriate quality of service button of 3 or greater. This is needed so I can get credit for my answer. If you have follow up questions please ask.

 

This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

Jack R., Lawyer
Category: Real Estate Law
Satisfied Customers: 6147
Experience: Mediator, part of the Ohio Save the Dream Foreclosure project
Jack R. and 11 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

We have taken photos already and are prepared to present them. What you're really saying is that it's all up to their discretion as to whether they will grant this or not.


 


The issue is the wooden fence. We CAN have an iron fence but the buyer specifically wants a wooden privacy fence.


 


Thanks for your time.

Expert:  Jack R. replied 1 year ago.

If you cannot convince the HOA board to allow the fence you are pretty much out of luck. Historically covenants have been difficult to overcome. The cost of litigating a covenant issue can be large. You have an opportunity to attempt to successfully litigate since 1 fence is already in place.

 

 

If you found this answer useful please press the appropriate quality of service button of 3 or greater. This is needed so I can get credit for my answer. If you have follow up questions please ask.

 

This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

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