Whose Side of the Fence... Continued From Page 20
fence owns it and is responsible for making decisions about its maintenance and for bearing those costs. Under normal circumstances, the neighbor that did not build the fence will not have any say about its maintenance. Some exceptions to these general rules are discussed below.
Internal Disputes
To settle a dispute between members or between an association and a member, look to the association’s governing documents. As with maintenance of any component in a common interest community, the governing documents might allocate ownership, responsibility for conducting maintenance, and responsibility for paying for maintenance to one party or they might divide those rights and responsibilities between several parties.
It is relatively common for governing documents to specifically allocate responsibility for fences.
It is relatively common for governing documents to specifically allocate responsibility for fences – although clarity is not always a forte of governing documents. In some associations, the documents might distinguish between declarant-built and later-built fences or might distinguish between fences located on common areas and fences located on individual lots. Either distinction, or others specific to a community, might determine who is responsible for the fence.
Chain Link Fencing (With Vinyl Coating)
In condominiums, fences may be common elements, limited common elements, or part of individual units. Consider the example of a townhome-style condominium, where each unit has a limited common element patio. Fences located on the edges of the patios enclose them and separate them from adjacent patios. Those fences may serve as the boundary of the limited common element patio and may themselves be unassigned common elements. The documents may or may not make owners responsible for ordinary upkeep of those fences. Whatever the case, the answer should be determined by the declaration.
Other Considerations
One common problem with fences is that they are not always built where they should be. For example, a landowner may erect a fence partially on neighboring land. If so, the fence is an “encroaching structure” and the owner of the neighboring land can sue to have the fence removed. A full description of adverse possession law is beyond the scope of this article but suffice it to say that if
Deteriorating Wood Fence In Need of Replacement 22 Community Associations Journal | June 2021
Freshly Stained Wood Privacy Fencing
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