Black or white? Can HOA determine fence color?

Q: We recently purchased a home in a relatively new community. It has several retention ponds and several areas of preserve land. The combination provides nice scenic views for many of the homes. The home is on corner lot with a view of a pond and preserve. When we first visited the community, we saw that several homes had black picket fences along the back and sides of their yards, which makes for great views of the surrounding areas.

The homeowners association has restrictive rules regarding the type of fence that can be installed. The rules state only homes that are “abutting” water can have black picket fences along the rear of the property, and all other fencing must be white or tan 6-feet-high vinyl fence.

Once in the home, we read through some material the previous owner left for us. We discovered she had installed 3-foot-to-6-foot wide sections of the black picket fence along a small area on the side of the yard. The HOA made her remove the fence since it didn’t comply with the rules.

Discovering this situation, we communicated with the HOA (actually the management company) asking why the fence wasn’t allowed when there were several homes that had the black picket fence that did abut water and the fence was on all sides of the property. They indicate a few homes had gotten a “variance” from the builder to have the fences. They also stated one home got approval, no explanation why, for the black fence when the property did not conform to the fence rule.

If the HOA allows exceptions like those stated, how can they then enforce the rule for other homes like ours? Do we have recourse to obtain approval to install the black fence?

A: It is not unusual for a developer to grant a variance during the time period that it has control over the association’s operations. I have seen this occurrence a number of times. Once a variance has been given to a homeowner, it would be extremely difficult and costly to have a homeowner-controlled board to have that homeowner resubmit an architectural request that follows the guidelines of the association. In this case, for the homeowners to remove their black fences.

The fact that the developer and or previous boards granted the variances does not necessarily negate the current and future boards from properly enforcing the association’s governing documents.

Q: A woman ran for our board of directors without disclosing that she was suing our community, which was against the Nevada Revised Statutes codes. A number of us followed the necessary steps outlined by the ombudsman to protest.

For about 18 months I have written to the ombudsman about this issue, including all the paperwork. He never acknowledges (it). I have even written to the attorney general for help getting the ombudsman to do his job. Do you have any advice for me?

A: Between the pandemic, closed offices and more complaints than investigators, it would not surprise me that you have not heard back from the Ombudsman’s Office. My recommendation is to contact the new ombudsman as Charvez Foger no longer holds that position. The email address is cicombudsman@red.nv.gov. You also may want to contact the Commission for Common-Interest Communities and Condominium Hotels supervisor at 702-486-4480 and ask for an appointment with the ombudsman or the investigator that has your complaint.

As to the homeowner who did not disclose the lawsuit, I don’t believe that you will receive much satisfaction from the division. NRS 116 laws do not clearly provide any penalties per se for those homeowners who do not provide full disclosure.

Barbara Holland is an author and educator on real estate management. Questions may be sent to holland744o@gmail.com.