Fence Recommendation for POA Board Meeting 12-14-09
The Board made an inquiry to our Attorney’s Becker & Poliakoff in November 2009 regarding the restriction against the erection of "fences" in Seminole Lakes. The Board referenced Article V, Section 10 of the Declaration of Covenants, Conditions and Restriction for Seminole Lakes as well as a copy of Rule 10 of the Rules and Regulations for the Association. The Governing documents speak directly to the issue and provide that "no fences whatsoever shall be constructed or maintained on any parcel except that the Declarant and the transferee of Declarant may construct fences, without permission of the architectural review committee". Further, the rule adopted by the Association reiterates that "no fences of any kind shall be constructed or maintained on any parcel".
The Board advised that at present, there were approximately thirty-two "picket" type "fences" on various lots which screen various structures like air conditioner units, electrical boxes, border plants and shrubbery, and separate property lines as a type of "privacy wall" (Attachment A).
Inasmuch as the Covenants are vague on the actual material (s) which constitutes a fence, this Board did not attempt removal of the picket fence structures; however, they did enforce removal of a chain link fence which was used to enclose a residents’ property, as that fell within common fence definitions, i.e., chain link which was enclosing an area.
Our attorney’s reviewed our documents and conducted research to determine if any Florida appellate court cases had, in the homeowner’s association context, defined what a "fence " is. They could find none. In a New Jersey case, the court concluded that "there is no single construct for the word "fence". The court did state that as long as a structure marks a boundary or prevents intrusion or escape, then it is a fence regardless of the material.
The Attorney’s concluded and stated their opinion that fences, of any kind, are prohibited on property within the community and based on court cases, there is no single construct for the word "fence".
The Covenants Committee Oversight Director, Chairperson, and Star Management met in November to review the attorney findings and based on the attorney recommendations; they are proposing a resolution which "draws a line in the sand" to allow all fence structures erected as of this date be allowed to stand; and restricting new fence structures in the future.
Therefore, I make a motion to approve the following Resolution:
CORPORATE RESOLUTION
OF
SEMINOLE LAKES PROPERTY OWNERS ASSOCIATION, INC. (Association)
WHEREAS, I the undersigned, being the Secretary of the Corporation, and being under a business duty to record all corporate decisions and resolutions, do hereby record this Corporate Resolution pursuant to Regular Corporate Authority, and said Resolution is the free act and deed of said corporation; and
WHEREAS, the Association, a not-for-profit corporation established pursuant to the laws of the State of Florida conducted a duly called meeting on December 14, 2009, of the Board of Directors, at which meeting quorum was present; and
WHEREAS, the Association, through its Board of Directors, has the obligation to ensure compliance with the governing documents and related rules and regulations to the best of its ability; and
WHEREAS, Article V, Section 10 of the Declaration of Covenants, Conditions and Restrictions for Seminole Lakes ("Declaration") provides in pertinent part:
Section 10 – No fences whatsoever shall be constructed or maintained on any
parcel except that the Declarant and the transferees of
Declarant may construct fences, without permission of the architectural Review
Committee.
WHEREAS, the Board of Directors recognizes that in the past it has failed to diligently enforce this restriction and certain Unit Owners have failed to abide by this restriction and have installed fences on their property; and
WHEREAS, the Board of Directors wishes to reaffirm the provisions contained in the Declaration and recognizes its obligation to ensure adherence to said provisions and to grant no exception to the above-reference restriction.
NOW, THEREFORE, it is hereby resolved as follows:
1. The above provisions are herein incorporated by this reference.
2. A fence is any structure erected on any portion of a Lot within the Community
which is
Intended to screen, decorate, enclose, contain or separate all or any portion of
said lot.
3. From this date forward, the Association will strictly enforce its restriction
on the installation
of fences. Fences erected prior to the date of this Resolution will be
grandfathered-in and
will be deemed approved and ratified by the Board of Directors as they preceded
this
Resolution, but may not be replaced.
4. Notice of this Resolution shall be provided to all Unit Owners promptly upon its adoption by the Board of Directors.
The Undersigned hereby certifies that the above is a true and correct copy of this Resolution approved by the Board of Directors at its meeting on December 14, 2009.
DATED this ________________day of ______________________2009
SEMINOLE LAKES PROPERTY
OWNERS ASSOCIATION, INC.
BY:______________________________, Secretary
_______________________________
STATE OF FLORIDA )
)
COUNTY OF CHARLOTTE )
The foregoing instrument was acknowledged before me this ______ day of
____________________, 20___ by Linda R. Huber, the Secretary of Seminole Lakes
Property Owners Association, Inc. a Florida not-for-profit corporation, on behalf of the corporation, who is personally known to me or has produced _____________________
As identification and who did/did not take an oath.
___________________________________________________
NOTARY PUBLIC SIGNATURE
STATE OF FLORIDA AT LARGE
My commission expires:
____________________________________________________
PLEASE PRINT OR TYPE NOTARY SIGNATURE