Q: Our architectural review board approved plans submitted by an owner for a new fence in the backyard. The approved fence was to be a short, black iron fence that did not extend past the width of the rear patio. Construction started and the fence is much taller and wider than approved and will extend well beyond the width of the actual home when completed. All other approved fences are similar to the fence approved for this owner. We have demanded that the owner stop work and remove the larger fence or modify the improvements in accordance with the approved plans. Can the homeowners association enter the property and remove the fence if the owner refuses to comply?
A: The owner should have submitted a new application for the larger fence, but now that it is installed, the solutions are not so simple. Even if the community Declaration contains sufficient authority for the association’s agents to enter property and correct this violation, there are some things to consider before sending out the demolition team. The association needs to weigh the severity of the violation against the risks involved with entering private property and tearing down a fence. For instance, the landscaping for abandoned or foreclosed homes can quickly deteriorate and there is very little risk involved with the association hiring a landscape company to maintain the exterior until the property changes hands. The costs of that maintenance can be recovered from the owner of the property in most cases. However, if the home is occupied by a full-time resident who is likely to get upset and start an altercation when a crew starts to demolish the shiny new fence, the association should seriously consider other alternatives. The association can impose fines of up to $100.00 for each day the owner fails to comply, which could result in a lien if not paid. The association can also pursue an order in court to force the owner’s compliance and recover attorney’s fees incurred in that process. The association likely has the law on its side in this case, but we certainly recommend that your Board consult with its legal counsel before exercising “self help” and entering the owner’s property.