Sellers must move the fence

[rvolk75]

Hey Guys,

Need your advice. I'm a listing agent for a property I'm selling. The house is an end-unit townhome in a Home Owners Association (HOA). Since it's a corner unit, the sellers have a side fence which is pretty big in size for a townhome. It's about 24' by 60'.

We found a buyer, went under agreement, the appraisal was done, the inspection was done... everything was moving smoothly, up until now. Since there's an HOA, I had to get a Resale Certificate before the settlement. HOA sent out an inspector to make sure the property is according to HOA guidelines. When the inspection report came back, the inspector stated that the fence can only extend 17' from the house. Currently, it's 24' from the house.

My sellers bought this place in 2006 and the fence was already there. They did not install the fence. The resale certificate was issued and there weren't any problems. After they moved in, the HOA sent them a letter stating that since some of the planks were rutted and falling apart, they would need to fix the fence. They left the original posts in place and replaced all of the planks. Then they painted everything the same color. They did not change the dimensions of the fence. They only updated it.

Now the HOA is telling them that they need to reduce their yard in size. Well, obviously the buyers are not very happy with that. When they put an offer on this house, they were expecting a house with a large fenced yard, but now they're getting this house with a small fenced yard. The property is not too appealing anymore to them. So the buyers want to walk away.

Here's my question. Since the HOA did not find any issues with the dimensions back in 2006 when the place was last purchased, can they now request the sellers to change the size of the fence?

My sellers will be contacting a real estate attorney regarding this issue and see if anything can be done. In the meantime, I want to run it by you guys and see if you can provide some advice.

Thanks for reading this long post.

Russell

[Arizona Real Estate]

If you can get a copy of the previous reseller certificate or look in the HOA file you might have a change. I had the exact same situation occur with one of my agents, the buyer kept the home but had to move the fence.

[satxproperty]

You probably would need to find the document from the Architecture Review Committee or whoever that authorized the installation of the fence.

A resale certificate probably isn't considered formal or final approval.

Good Luck!

[rvolk75]

Thanks for advice guys. I'll look into finding the approval from when the fence was first built. The problem is, if the approval process wasn't enforced back then, they probably won't have that form. They told me they started enforcing the uniform look in April of this year.

[Bigtoe]

Thanks for advice guys. I'll look into finding the approval from when the fence was first built. The problem is, if the approval process wasn't enforced back then, they probably won't have that form. They told me they started enforcing the uniform look in April of this year.

Sometimes/some places, if an HOA randomly enforces the regulations and lets some people get away with some things, then the net affect is all the HOA rules & regs become non-enforceable.

Make sure the seller's attorney understands the HOA enforcement method or lack of. Any other instances of the HOA bending the rules will help. In NC, all the rules are enforced or non of them can be enforced.