#444-O, Bennett v. Potomac Farms Homeowners Association (October 26, 1999) (Panel: Stevens, Price, Skobel)

The homeowner (HO) appealed an order of her homeowner association (HOA) requiring her to remove her fence from the common property.

The evidence before the hearing panel showed that in approximately 1990, the then-owner of the property applied for permission to construct a fence at the rear of his yard that extended into the CA's common property by 7 feet and that he had received approval.  There was no documentation of this claim, but the CA did not deny it.  The property was later sold to a new owner without any action by the HOA regarding the fence; and in 1998 the second owner sold it to the HO.  One month after the purchase contract was signed the HOA sent a notice to the seller that the fence was in violation of the rules because it was located on the common property, and after additional proceedings, the CA ordered the HO to remove the fence.  The evidence was clear that the fence was located on the common property, and that it prevented other members of the CA from using that strip of land.  The HO conceded she did not own the strip of land involved.

The hearing panel found that the CA had granted permission to the first owner to install the fence on the common property and in effect granted a "license" for the exclusive use of that land; but that it had not surrendered ownership or control.  The panel held that the HO had the right to keep the fence and use the land for so long as the fence remained in good condition and without the need for repairs, but no longer than 10 years.  Once the fence was no longer sound, or after 10 years, whichever came first, the HOA had the right to reclaim the use of the land and to require removal of the fence.