#482-G, Neelsville Estates Community Association v. Miller (December 31, 2001) (Panel: Philbin, Maloney, Weiss)

The homeowner association (HOA) filed a complaint against the homeowner (HO) for having built a fence without approval.  The HO admitted to constructing the fence without approval but claimed in defense that the HOA had permitted fences similar to his.

The evidence at hearing showed that the HOA rules prohibit the construction of fences without prior approval of the HOA's architectural committee; that on April 4, 1998, the HO applied for permission to construct a 5-foot tall board fence, asking for a reply by April 10 because that was the day construction of the fence was to begin; that on April 11 the committee chairman informed the HO not to start work without approval; and that on April 15 the HO began construction of the fence without approval.  A month later the architectural committee rejected the HO's application because the design did not meet the community standards.  Although the HOA had no written standards for fences, the HOA's practice was to permit only split-rail fences.  As to the 2 other non-conforming fences cited by the HO, the evidence showed that the HOA had taken action to remove one, and that the other had been approved by the developer of the community and the HOA did not believe it had the legal authority to take action against it.

The Panel concluded that the HO had violated the community rules by constructing a fence without approval and also by constructing a fence that did not meet community standards.  The panel recommended that the standards be in writing, but it also found that the HOA consistently enforced its unwritten standard of split-rail fencing.  Therefore the Panel held that the HOA's decision to reject a board fence was reasonable and consistent with its governing documents, and the Panel ordered the HO to remove the fence by the end of the year.