Can a Bella Vista, Arkansas POA architectural committee ban white fences and remove non-compliant ones?

Plain-English summary

Representative Gayla McKenzie asked whether the Bella Vista Property Owners' Association's Architectural Control Committee could ban white fences, enter private property to remove them, and whether such entry would be criminal trespass. The AG declined to answer those questions.

The AG understood the POA to be a private nonprofit corporation. She said its charter documents and recorded land agreements would control the scope of its authority over members. Deciding the questions required a review of those private documents, which she could not undertake in an AG opinion. She referred the dispute to private counsel. The opinion makes no finding about the fence rule, entry onto property, trespass, or FOIA and open-meetings applicability.

What this means for you

If you own property in Bella Vista

This opinion does not decide whether the announced white-fence rule was authorized or enforceable. The AG pointed to the POA's charter documents, recorded agreements, and other covenants as the materials relevant to that question, and recommended private counsel.

If you serve on the architectural committee

The opinion provides no approval of the announced rule or any removal action. It says the committee's authority presumably depends on the POA's governing documents.

If you advise a party to the dispute

The AG declined to interpret the private documents. She cited Ark. Code Ann. § 25-16-706 for the state-law scope of AG opinions and § 25-16-701 for the ban on the AG's private practice of law.

Common questions

Did the AG rule on the white-fence ban?
No. She declined to opine on the scope of the POA's authority over members.

Did the AG decide whether the committee could remove fences or commit trespass?
No. Those questions were also declined.

Did the AG decide whether the POA is subject to the FOIA or open-meetings law?
No. The opinion describes the POA as a private nonprofit corporation but does not analyze FOIA or open-meetings applicability.

Background and statutory framework

The AG quoted Hutchens v. Bella Vista Vill. Prop. Owners' Ass'n for the POA's role in managing the planned community and the fact that property owners are members subject to the declaration. She concluded that the charter documents and covenants, rather than the facts supplied in the request alone, would be necessary to decide the committee's authority.

Citations

• Ark. Code Ann. § 25-16-706 (scope of AG opinions)
• Ark. Code Ann. § 25-16-701 (private-practice prohibition)
• Hutchens v. Bella Vista Vill. Prop. Owners' Ass'n, 82 Ark. App. 28, 110 S.W.3d 325 (2003)
• Ark. Op. Att'y Gen. 2018-088 (cited for the POA's nonprofit status)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-069
December 10, 2021

The Honorable Gayla H. McKenzie
State Representative
18134 Highway 72 SE
Gravette, AR 72736-8021

Dear Representative McKenzie:

This is in response to your request for an opinion on behalf of several constituents in Bella Vista, Arkansas, concerning certain proposed restrictions in a planned community. Your correspondence provides the following background information:

The Bella Vista Property Owners Association, hereafter referred to as the POA, is the governing entity for Bella Vista, Arkansas, a Cooper Communities, Inc. development. The POA's Architectural Control Committee, hereafter referred to as the ACC, recently announced that no white fences would be allowed in Bella Vista after January 1, 2022. Further, residents that currently own white fences would either have to have them repainted or removed entirely.

Naturally, the residents of Bella Vista are resistant to this change and have submitted over three hundred signed petitions seeking to keep their white fences. More petitions are expected to be submitted.

In light of the foregoing background information, you have asked the following questions:

1. Does the ACC have the legal authority to arbitrarily mandate that there will be no white fences in Bella Vista, Arkansas?

2. Does the ACC have the authority to enter private property without permission to remove any fences?

3. If the answer to the second question is yes, would such conduct by the ACC be deemed or constitute criminal trespassing?

RESPONSE

I must respectfully decline to opine on these questions concerning the scope of a private property owner's association because a POA's transactions with its members are beyond the scope of my authority to assess. Such questions should be referred to private counsel for resolution.

DISCUSSION

It is my understanding that the Bella Vista Property Owners' Association (POA) is a private nonprofit corporation. The Arkansas Court of Appeals has offered the following summation of the Bella Vista POA's operations:

Bella Vista Village is a planned residential and commercial community that was formed in 1965. In accordance with the terms of the Bella Vista Declaration, the . . . Bella Vista Village Property Owners' Association (POA), was established to manage the affairs of Bella Vista Village. Every Bella Vista property owner is a member of the POA, and their property is subject to the declaration.

It is apparent from this description that the POA's charter documents will control the scope of the POA's authority, and presumably that of a committee such as the ACC. As a general matter, therefore, your questions are governed by private contract. They require reference to recorded land agreements or other private covenants or documents evidencing the contractual obligations of property owners who are members of the POA. I cannot, in my capacity as Attorney General, undertake the necessary document review in this regard. Such matters fall outside the scope of an Attorney General opinion. They require the services of private legal counsel, and I am specifically prohibited from engaging in the private practice of law.

I regret that I cannot be of assistance in this matter. If I may be of assistance in some other respect, please do not hesitate to contact me.

Sincerely,

LESLIE RUTLEDGE
Attorney General

PDF footnote 1: See Op. Att'y Gen. 2018-088 (noting the Bella Vista POA's legal status as a private non-profit corporation, as opposed to a public body politic or governmental entity).

PDF footnote 2: Hutchens v. Bella Vista Vill. Prop. Owners' Ass'n, 82 Ark. App. 28, 31, 110 S.W.3d 325, 327 (2003).

PDF footnote 3: Official opinions of this office are limited in scope and must be focused upon questions involving the interpretation of state law. See Ark. Code Ann. § 25-16-706 (Repl. 2014).

PDF footnote 4: Ark. Code Ann. § 25-16-701 (Repl. 2014).