SPRING, Texas – A family in Montgomery County is at a standstill with their neighborhood homeowner's association. The Bender's Landing HOA Board doesn't like the very thing Susan Durgapersad says is keeping her family safe.
She called consumer expert Amy Davis for help when her HOA told her she needed to remove the safety fence around her swimming pool.
The fence was installed the same year the home and pool were built in 2014. Their homeowner's insurance company told Durgapersad they are required to have a fence around their pool. But in 2016, the HOA told the family to take it down, claiming the fence is "not compliant with association guidelines."
"It provides safety for the entire community and our family," Durgapersad told Davis. She lives on a corner lot in the subdivision with no perimeter fence around her big yard. Without the safety gate around her pool, anyone could wander into her yard and fall in.
"The pool fence is not an eyesore. It blends into the home. It matches the home.. and there's probably 50 fences of this same type installed in this neighborhood," Durgapersad explained.
We sent Channel 2's chopper Sky 2 over the subdivision to confirm that. In a matter of minutes, we spotted 7 pool fences just like Durgapersad's.
By email, Bender's Landing HOA president Bruce Johnson contends that corner lots like Durgapersad's can only have a non-privacy fence constructed of iron no more than 4 feet tall.
"A privacy fence goes around the perimeter of your yard. A pool fence is totally different," argued attorney David Kahne. Davis asked him to read Bender's Landing's deed restrictions and weigh in. Kahne pointed out that the subdivision's deed restrictions make no mention at all of pool fences.
"And the way the Texas law works, it says if the deed restrictions don't impose a restriction, it's up to the owner to decide how to use your property," he explained.
One of the homes with a fence just like Durgapersad's we saw from Sky 2 is also on a corner lot. Still, the board has denied her appeal to allow her fence twice.
"The rules of the subdivision seem to have more precedence over human life; and that's what bothers us a lot," Durgapersad said.
Kahne says she has three choices: Move, pay for a much more expensive iron fence allowed by the HOA or sue the board.
"Sometimes what I tell homeowners is that they have to sue first to get a fair chance," said Kahne.
That's because in Texas, if the homeowner sues and wins, the HOA has to pay for the homeowner's court costs. If the HOA sues the homeowner, even if the homeowner prevails, they are not entitled to recover the cost of hiring an attorney and defending themselves.
This is the full statement sent by Bender's Landing Board President Bruce Johnson:
“The deed restrictions for Bender’s Landing provide specific guidelines for fencing and an approval process to follow prior to installing a fence. These guidelines are partly in place for the protection of the homeowner and their neighbors throughout the community. In this case, the owner did not seek input and approval for their fence and it is not compliant with the association guidelines. The owner is being asked to comply with the same rules that all owners in Bender’s Landing are required to follow. We have asked that they work with us to ensure the fencing is corrected to comply with the guidelines. As neighbors, the board will work with the family throughout this process in a way that ensures the community standards are protected and the deed restrictions are consistently enforced.” - The Board of Directors, Bender’s Landing POA.