Can an HOA selectively choose when to follow the covenants?

I asked to place a 5′ fence up; code requires that it be 6′. The Board has approved 5′ fences in the past year even though they did not meet code. I was told that, “We are aware the board approved fences that did not meet our code; however, we are not approving any more”.

Asked on June 12, 2012 under Real Estate Law, Kansas

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

From what you have written, members of the board of your homeowner's association can selectively decide to follow which covenants, conditions & restrictions that are recorded if they choose to. If that is what is happening, what the board is doing is improper and members of the association can bring an action to enforce compliance with the recorded requirements.

If that is what you desire, you should consult with an attorney who practices real estate law with an emphasis on planned unit developments.


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