Whose Side of the Fence Are You On?
— By Tim Feth, Esq. — F
encing can lead to bouts of animosity between neighbors about construction and maintenance or potential trespass
or boundary disputes. In common interest communities, these disputes arise externally – between an association or member and a non- association neighbor – and internally – either between members of the community or between an owner and the association.
External Disputes
What are the obligations of the association and the neighbor in each of the following situations? 1. The board of directors of an association wants its neighbor to replace a fence along a shared boundary that has fallen into disrepair.
2. A neighboring landowner builds a new fence, and an owner complains to the association’s manager that the fence encroaches onto association property.
3. A neighboring property owner repairs a fence that was damaged in a windstorm and sends the association a bill for half of the cost of repair.
Disputes between a community association (or an individual owner) and a neighboring landowner are not governed by community association law. The Condominium Act,
20 Community Associations Journal | June 2021
WUCIOA, and the association’s declaration and bylaws will not define the rights and responsibilities of the neighboring landowner. Instead, the dispute will be settled based on more general principles of property law.
The first question is whether there is any legal document on point. There may be a contract – such as a settlement agreement from a past dispute – or a recorded document – such as a maintenance agreement, license agreement, or easement. A plat can also define rights between neighboring properties or identify other sources of obligation. Any of those documents might contain the operative language defining to what standard the fence must be maintained and who is responsible for the costs of that maintenance (or if both parties are responsible, how the costs are shared). If there is a legal document, the parties should abide by it or take the proper steps to modify it.
If there is no controlling legal document, the next question is who owns the fence.
If there is no controlling legal document, the next question is who owns the fence. In the ideal situation, one neighbor builds a fence along a shared boundary but the fence is fully on his or her own property. The neighbor that built the
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