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

Plain-English summary

The Bella Vista Property Owners' Association (POA) Architectural Control Committee announced that no white fences would be allowed in Bella Vista after January 1, 2022, and existing white fences would have to be repainted or removed. Several hundred residents petitioned against the rule. Representative Gayla McKenzie asked the AG three questions: does the ACC have authority to ban white fences, can the ACC enter private property to remove fences, and would such entry constitute criminal trespass?

Attorney General Leslie Rutledge declined to answer. The Bella Vista POA is a private nonprofit corporation, and the scope of its authority over its members is governed by the POA's charter documents, recorded covenants, and member agreements. Those are private-contract questions. The AG's opinion-writing authority under Ark. Code Ann. § 25-16-706 is limited to questions of state law. Section 25-16-701 separately prohibits the AG from engaging in the private practice of law.

The opinion cited the Arkansas Court of Appeals in Hutchens v. Bella Vista Village Property Owners' Ass'n, 82 Ark. App. 28, 110 S.W.3d 325 (2003), which described Bella Vista's POA structure: every property owner is a member, and their property is subject to the recorded Bella Vista Declaration. Disputes within that contractual structure are matters for private counsel and the courts, not the AG.

Currency note

This opinion was issued in December 2021. The Arkansas legislature has periodically considered HOA-reform legislation since. Verify whether any new statute has changed the AG's ability to opine on POA matters or imposed new statutory limits on POA architectural rules before relying on this declination.

What this means for you

If you are a Bella Vista property owner challenging the white-fence ban

Per this opinion, the AG cannot help you directly. Your remedies are inside the POA's process and, beyond that, in state court. Pull up the Bella Vista Declaration and any architectural-control covenants attached to your deed. The committee's authority is whatever those documents grant. If the documents do not authorize the specific rule, you have a contractual claim. If they do, you may need a more creative argument (procedural, due process under the POA's bylaws, breach of fiduciary duty by the board).

If you serve on a POA architectural control committee

Your authority is contractual, not legislative. Before adopting a new restriction, especially one that requires existing-property modifications, verify the source in the recorded covenants. Document the committee's process and the substantive justification. Even where authority exists, the duty of good faith and consistent enforcement applies under general HOA law.

If you are a real estate attorney advising HOA disputes

This declination matters: the AG will not pre-clear or invalidate a POA architectural restriction. Litigation, mediation, or negotiation through the POA's internal channels are the only routes. Build the case on the recorded covenants, prior course of dealing, and any state HOA statute that may have reformed the playing field since 2021.

If you are a state legislator considering POA reform

The opinion's structural point is that POAs sit in private-contract space until a statute moves them into the regulatory state. Reform requires legislation, not AG guidance. If your constituents are pushing back against POA overreach, the path is through the General Assembly.

Common questions

Q: Why isn't a POA's authority a question of state law?
A: Because the POA is a private nonprofit corporation, not a state agency. Its authority over members comes from the recorded covenants and member agreements, which are contracts. State law does set the corporate-law and contract-law backdrop, and it sets some HOA-specific rules in certain states. But Arkansas has historically left most HOA-member disputes to the contracts and the courts.

Q: Can a POA legally restrict the color of fences?
A: It depends on the recorded covenants. If the architectural-control covenant grants the committee authority to set color rules, generally yes. If it does not, no. This is the kind of document review the AG declined to perform.

Q: Can a POA enter private property to remove a non-compliant fence?
A: Self-help repossession of property is constrained by criminal trespass and conversion law. Most POA enforcement provisions require notice and a hearing process before any physical action. The AG declined to opine on the specific scenario, but in general, unannounced entry to remove a homeowner's property would expose the POA to criminal and civil liability absent a clear contractual or judicial authorization.

Q: Is the Bella Vista POA a government entity?
A: No. The opinion confirms it is a private nonprofit corporation, citing Op. Att'y Gen. 2018-088. As such, it is not subject to the Arkansas FOIA or open-meetings laws that apply to public bodies.

Q: Where can affected residents take this?
A: Three paths. (1) Internal: the POA's grievance and rule-revision process, plus board elections. (2) Litigation: a declaratory-judgment action in state court asking whether the recorded covenants authorize the ban. (3) Legislative: lobbying for state HOA reform.

Background and statutory framework

Arkansas HOA law sits primarily in private contract: the recorded declaration, deed restrictions, articles of incorporation, and bylaws of each association. The Arkansas Code does not currently impose a comprehensive HOA-regulation regime comparable to those in some other states. The Arkansas Court of Appeals in Hutchens v. Bella Vista Village Property Owners' Ass'n recognized this structure: Bella Vista's POA was established by a recorded Declaration that runs with the land and binds every property owner.

The AG's opinion-writing function is bounded by Ark. Code Ann. § 25-16-706, which authorizes opinions on questions of state law for legislators, prosecuting attorneys, and certain other officials. Private-contract interpretation falls outside that scope. Section 25-16-701 separately bars the AG from engaging in the private practice of law, which document-by-document POA covenant review would essentially be.

For this kind of dispute, the path runs through private counsel and the trial courts.

Citations and references

Statutes:

• Ark. Code Ann. § 25-16-701 (AG prohibited from private practice of law)
• Ark. Code Ann. § 25-16-706 (scope of AG opinions; state law only)

Cases:

• Hutchens v. Bella Vista Vill. Prop. Owners' Ass'n, 82 Ark. App. 28, 31, 110 S.W.3d 325, 327 (2003) (Bella Vista POA structure and Declaration framework)

Prior AG opinions:

• Op. Att'y Gen. 2018-088 (Bella Vista POA's status as private nonprofit corporation)

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