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Q&A: Don’t Fence Me In

Q I recently bought a new unit in an HOA. I set up a fence in my backyard that management and the board says is too high, but the original developer’s original fences are as tall as the ones I installed. Most of the units still have this length fence. Do I have any recourse to keep the fence as is?

—Private in Princeton

A “It’s impossible to answer this question without reference to the condominium’s documents,” says Clive Martin, an attorney at the law firm of Robinson & Cole in Boston. “What provisions of the master deed or declaration of trust or rules and regulations does the board cite in their notice to you claiming that you have exceeded the allowed fence height?

“Is there a rule in the documents controlling fence heights and/or appearances? A provision restricting changes to the architectural integrity of the units? A provision forbidding the construction of new fences, or controlling the materials and/or dimensions of fences? If the board has not cited a specific provision that it says your fence violates, read the condo docs carefully yourself, or go to a lawyer and ask him or her to do so.

“If there is nothing in the condominium documents that controls the height of fences, you can tell the board that until it shows you a relevant provision in the condo docs to justify its position, you will make no changes to your fence. The board is charged with managing the common areas of the condominium according to the terms of the condominium documents, but its authority is rooted in those documents and it cannot act on just a whim.”

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