Our Clients Ask Us: Fence Installation

Q:

Several owners in our association had fences put up while the developer was still in control of the association. Now, five years later, as a Board, we decided that we don’t like the looks of fences, even though our governing documents allow them. Are we allowed to now deny requests to build any fence?

Answer: Probably Not

If the Declaration states that fences are allowed but must be approved by the ARB (Architectural Review Board), or Board of Directors, then the ARB or board has to power to deny a request for a fence based on a design element (wrong height, materials, color, etc.). However, to outright deny a request because the Board doesn’t like fences will be inviting a lawsuit. If the Board feels so strongly about not allowing fences, then the Association would have to take a vote of the membership to amend the declaration to prohibit fences. If the membership agreed, those owners who already have fences (who received proper approval prior) would have to be grandfathered in.

Keep in mind that not only would be the denial of approval for any fence be contrary to your documents, but many of your neighbors bought property in your association with certain expectations. Maybe they want a fence so that their dogs can run around free, so that they have privacy from their neighbors, or for the safety of their children; and otherwise wouldn’t have purchased the property. These logistical issues, as well as the legal ramifications, would likely be brought before a Court.

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