Property owners that are subject to restrictive covenants may want to install a fence for any number of reasons, such as keeping a dog or children in the yard, keeping pesky rabbits and deer out of the yard, or for aesthetic value. However, HOA bylaws commonly contain restrictions on fences, whether it be prohibiting fences altogether or proscribing the type or design of fences. Being aware of the provisions within the declaration, deed restrictions, restrictive covenants, HOA bylaws, and HOA rules can save an owner a lot of trouble and money by knowing if, and to what extent, fences are permitted. A homeowners association should also be aware of the fence restrictions, in addition to any time limitations to approve or disapprove an owner’s request to build a fence. Two cases from the Michigan Court of Appeals, Sedlar v Glenmar Place Subdivision Homeowners Association, unpublished per curiam opinion of the Court of Appeals, issued March 16, 2006 (Docket Nos. 257188 and 257241), and Dearborn Hills Civic Ass’n, Inc. v Merhi, unpublished per curiam opinion of the Court of Appeals, issued April 28, 2022 (Docket No. 354905), show exactly why those considerations are important.
Be Aware of HOA Rules Regarding Time Limitations for Fence Approvals
In Sedlar v Glenmar Place Subdivision Homeowners Association, unpublished per curiam opinion of the Court of Appeals, issued March 16, 2006 (Docket Nos. 257188 and 257241), the Michigan Court of Appeals considered what effect the time limitations for a homeowners association had on two homeowners’ requests to install fences. The homeowners association’s restrictive covenants contained two provisions that were applicable to fences. The first provision generally prohibited fences, but allowed “ornamental fences, garden walls and similar improvements” that were under four feet tall and that were approved by the association. The second provision detailed the process for an owner to install a modification on a lot, and required “plans and specifications showing the nature, kind, shape, height, materials, color and location” of the improvement be “submitted to and approved in writing . . . by the Architectural Control Committee.” Crucially, the second provision also stated:
In the event the Declarant, or the designated Architectural Control Committee, fails to approve or disapprove such design and location within 30 days after the required plans and specifications have been submitted to it, express approval will not be required and compliance with this Section will be deemed to have been fully effected.
The Court of Appeals first addressed the homeowners’ argument that the first provision of the restrictive covenants entitled them to install ornamental fences. The Court rejected this argument because the plain language of the provision clearly gave the homeowners association discretion to allow ornamental fences if the HOA chose to permit them. The Court next addressed the homeowners’ argument that the homeowners association waived enforcement of the fence provision because other fences existed in the subdivision. However, there was evidence that only four homes in the subdivision that had fences with no pools. Moreover, those fences were installed before the HOA was formed. Finally, the HOA’s restrictive covenants contained an anti-waiver provision, which stated that the homeowners association’s past failure to enforce a provision of the restrictive covenants did not preclude the HOA from enforcing the same provision in the future. Accordingly, the Court upheld the homeowners association’s denial of one of the homeowner’s requests to install an ornamental fence.
The Court then turned to the second homeowner’s request to install a fence. The homeowner submitted a request to the developer in May 2002 to build a fence. Even though the developer denied the request on June 13, 2002, the Court determined that this request was not a proper request “because it did not contain the required specifications” required by the restrictive covenants. “In fact, the request was so lacking in detail that [the developer] did not ‘approve or disapprove’ the [homeowner’s] request, but rather set forth the information that it would need to ‘consider any approval.’” Accordingly, the Court determined that the lack of plans and specifications prohibited the developer from approving or disapproving the request.
The homeowner then submitted a request to build a fence to an individual board member on August 12, 2003. Because the restrictive covenants did not contain a procedure for submission and acceptance of requests for alterations, improvement, or additional structures, the homeowner’s submission of the request to an individual board member was determined to be submission to the entire board. The board denied the homeowner’s request on September 12, 2003, which was not within 30 days of the August 12, 2003 submission. Accordingly, the Court determined that the homeowners association’s express approval was not required, and the homeowner was entitled to install the ornamental fence described in their request.
Be Aware of HOA Rules Regarding Fence-Style Restrictions
In Dearborn Hills Civic Ass’n, Inc. v Merhi, unpublished per curiam opinion of the Court of Appeals, issued April 28, 2022 (Docket No. 354905), the Court of Appeals considered whether the aesthetics and style of the owner’s fence violated the homeowners association’s restrictive covenants. The restrictive covenants contained provisions that required owners to seek the HOA’s written approval of a planned modification to ensure that the modification was in conformity and harmony with the existing structures in the subdivision. The restrictive covenants also prohibited owners from installing a fence in front of the building line, more than four feet tall, and made of solid board that obstructed the view.
In 2013, defendants, Malik and Rana Merhi, installed fencing in their backyard without submitting plans to the association’s approval. On September 8, 2018, the homeowners association discovered the fence violation and demanded that the defendants remove the fence. When the defendants did not comply, the HOA filed a lawsuit seeking a court order requiring the removal of the fence. At a hearing, the homeowners association presented evidence that the fence was more than four feet high, and the solid design of the fence obstructed the view, while the defendants did not present any evidence that the fence complied with the restrictive covenants. The trial court ordered that the defendants must remove the fence because it violated the restrictive covenants.
On appeal, the defendants first argued that the fence should not be removed because not every section of the fence violated the restrictive covenants. Although the homeowners association presented evidence showing that the front and sides of the fence contained solid panels, the defendants argued that the HOA had not presented evidence showing the back portion of the fence. The Court of Appeals dismissed defendants’ argument because the homeowners association had demonstrated that at least a portion of the fence violated the restrictive covenants; the HOA was not required to show that the entire fence violated the restrictive covenants to establish a violation. Moreover, the Court noted that the defendants did not show that the back portion of the fence complied with the restrictive covenants. Instead, the defendants only suggested that the back portion that was “not clearly visible in the Association’s photographic images might not violate[] the [restrictive covenants].”
The defendants continued to argue that the homeowners association waived enforcement of the restrictive covenants because the fence was built in 2013 and the HOA did not enforce the restrictive covenants until 2018. The Court dismissed this argument because there was no evidence that the homeowners association knew about the non-compliant fence before it took enforcement action (the association contained about 1,250 lots). Further, the HOA’s delay in enforcing the restrictive covenants did not prejudice the defendants. Accordingly, the Court of Appeals upheld the trial court’s order that required the defendants to remove the non-compliant fence.
Conclusion
Sedlar v Glenmar Place Subdivision Homeowners Association, unpublished per curiam opinion of the Court of Appeals, issued March 16, 2006 (Docket Nos. 257188 and 257241), shows that while fences may generally be prohibited by the restrictive covenants, exceptions may exist, such as ornamental fences and garden walls. It also demonstrates the importance of being aware of time restrictions for approval or disapproval of a modification request and providing a response within that timeframe. Homeowners associations that have a time restriction in their governing documents should ensure that any disapproval is communicated to the owner in a timely fashion. If not, the HOA risks that the modification request will not need the homeowners association’s prior approval and the owner will be entitled to install the modification.
Additionally, board members need to be aware of modification requests from owners in order to timely respond. Without an express provision outlining the submission process, notification of a modification request to one board member may be deemed to be notification to the entire board. Consider a general board email address that all board members can access to ensure that all are aware of modification requests.
Dearborn Hills Civic Ass’n, Inc. v Merhi, unpublished per curiam opinion of the Court of Appeals, issued April 28, 2022 (Docket No. 354905), shows the importance of documenting violations of the restrictive covenants in the event that the violation cannot be resolved short of litigation. By documenting an owner’s violation of the deed restrictions, the homeowners association will help its community association attorney during litigation.
Michael T. Pereira is an attorney with Hirzel Law, PLC and focuses his practice on community association law. Mr. Pereira received his Bachelor of Arts in Political Science from the University of Michigan. He then obtained his Juris Doctor degree from the University of Detroit Mercy School of Law, where he graduated second in his class and served as the Executive Editor of Outside Articles on the Detroit Mercy Law Review. After law school, Mr. Pereira worked as a research attorney at the Michigan Court of Appeals before clerking for the Honorable Patrick M. Meter and the Honorable Anica Letica in the Michigan Court of Appeals. Mr. Pereira can be reached at (248) 986-2290 or mpereira@hirzellaw.com.
