Q&A: Fencing

Q Can an owner of a condominium/villa erect a fence 12 feet out onto the common area when the bylaws state only five feet is the responsibility of the owner? Can board members sign an agreement going against the bylaws? Also, the president of the association erected the fence and got members to sign off—is this irregular?

—HOA Unit Owner

A “The Condominium Act precludes the use of common elements by a unit owner which encroaches upon the rights lawful rights of the other unit owners,” says Norman L. Zlotnick, Esq. of the law firm of Mairone, Biel, Zlotnick & Feinberg, P.C. in Atlantic City. “Erecting a fence within the common area violates the rights of the other unit owners to sue that space in common. The question also raises the issue of whether the unit owner even had the right to erect a fence in the first place. That would depend upon what is said in the particular condominium’s documents.

“As to the agreement issue, any agreement which violates the provisions of the bylaws is illegal and unenforceable. Moreover, getting members to sign off on conduct that violates the Condominium Act, and probably the association’s governing documents, does not validate such conduct. It is still improper conduct.” n

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