J.M. from North Carolina writes:
Dear Mister Condo,
We wanted to allow our HOA-legal indoor cats onto the porch. I scoured the governing docs for regulations. Nothing. I put up nylon deer netting, almost invisible, to contain the cats. All was well until an election installed a new HOA President. He made people remove chicken wire from porches, citing an “unsightly” clause in our docs. Now, I’ve received a violation letter for the netting. It says it is a health hazard and unsightly. There is no definition of “unsightly” in the docs. There is no clause that the Board has the right to define it. The violation letter also doesn’t meet the criteria that is clearly spelled out in the docs for what must be contained in a violation letter. The HOA President has given me a 4-day timeframe to remove the netting, also against what it says in the docs. When the HOA contacts me again, I plan to tell them they are not empowered to do anything until they present a violation letter that meets the criteria set forth in the governing docs, then I have “not less than 10 days” to contest in writing, then a hearing date must be set. In the mean time, I’ve gotten statements from the Town Fire Chief and County Health Department stating that the netting does not present a health risk. At my eventual hearing, I plan to debunk the “unhealthy” part of the complaint with the letters and ask for records of complaints by other owners, names expunged, against my unit porch for being “unsightly.” (There aren’t any.) I have asked the HOA for a solution that allows my cats on the porch, without assaulting their sensibilities. Crickets. What else can I do? Who gets to decide the definition of “unsightly” when one isn’t in the governing docs and the HOA is not specifically empowered to define it?
Mister Condo replies:
J.M., it sounds like you took a reasonable approach in setting up a suitable area for you and your cats to enjoy some outdoor time for you and your cats. However, the netting is being attached to a building exterior and, as such, may be subject to compliance with your HOAs rules on architectural modifications. That being said, your letter states that the Board is choosing to go with a questionable “unsightly” clause in your documents that you say doesn’t even exist. Further, the Board is not observing due process and appears to be making it up as they go. This is unfortunate for all involved.
Needless to say, you have rights as defined in your HOA documents and further in state law. Should it come to a civil suit where you bring charges against your Board, you would likely win. However, that doesn’t prevent the Board from coming back at you with a violation of architectural compliance, which they would likely prevail. The bottom line is that the Board is the ultimate authority for enforcement of the HOA’s rules and regulations but they do need to play by the rules when it comes to enforcing violations. I do not believe in this instance they have done so but that doesn’t mean things will be easy for you. If they persist in their line of attack, you may need to seek counsel and bring a suit against the Board to simply enjoy some outdoor time with your cats. At some point, the cost of remedy may outweigh the reward of winning. All the best!