Restrictions differ within the development

by jack
(Franklin Indiana)

Visitor Question: Can the HOA restrict homeowners whose back yards face a street by not allowing fences, sheds etc., and not restrict other home owners the same?

Editors Reply: Yes, in our opinion an HOA that has the power to issue new rules not necessarily deriving from the restrictive covenants can issue almost any rule they would like. (Not every HOA is granted the power to make up new rules and regulations.)

It seems like common sense that every property would be treated the same, but in reality, not every property has the same impact on the public perception of and reputation of the development. So probably your HOA was simply thinking that since circumstances are different on different lots, they have the power to make unique rules for each area in the subdivision.

Of course, the treatment of the rear lawns that face a street should have been set forth in the initial covenants that govern the subdivision, so that each property owner would know the rules prior to closing on their home. If that did not happen here and if the rule was made after you purchased your home, it may be possible for you to go back to the HOA and try to reason with them.

While we are discussing this, we simply must make the point that prospective homeowners in an area governed in part by an HOA should make every effort to obtain and read all of the covenants and rules that pertain to the property long before the date of closing. We think that developers, real estate companies, and closing agents including title companies or real estate attorneys have an obligation to provide the covenants and rules as soon as a valid sales contract exists.

It's certainly not unreasonable for a property buyer to expect to be able to put a shed and a fence in his or her back yard.

However, it is also not unreasonable for an HOA to impose different rules on differently situated properties within the development. Now if the HOA decides that people whose last names begin with the first half of the alphabet can have a fence, while those whose last names start with the second half of the alphabet cannot, that would of course be a violation of common law and no doubt would result in having such a rule overturned in court.

But the situation you describe does have its root in the layout and geography of the development, so we don't think the HOA was out of line legally. Now we don't particularly understand their rationale, but we suppose they are trying to guard against property improvements such as fences and sheds that sometimes fall into disrepair as homeowners give priority to the home itself rather than these accessory structures.

Maybe you will be able to make a reasonable pitch to the HOA about your point of view. If you keep calm and avoid personal attacks, you might have a chance at success, since their position doesn't seem to have much of a rationale behind it.

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