As homeowners and a Board in Westchester County recently discovered, nothing constructive comes from a Board member’s informal and improper permission to a homeowner for an alteration.
According to the Appellate Division, Second Department’s decision in Ives v Fieldpoint Community Assn., Inc., 2021 NY Slip Op 05028, decided September 22, 2021, the clear and unambiguous rules of the Homeowners Association governing fence installation rule the day.
Here, the homeowners were aware of the rules requiring prior Board approval for the installation of a fence. The homeowners were also aware that only wooden split-rail fences were permitted. Despite this knowledge, they erected an aluminum fence without first obtaining proper Board approval, and contended that their actions were justified partly because of the conversation with a Board member who told her to “go ahead and put up a fence, and then apply for after-the-fact approval, and that any fine for doing so would be nominal.”
Holding in favor of the Board, the trial and appellate courts ordered the homeowners to remove the fence. The victory didn’t come soon enough, however. Had the Board member refrained from giving unofficial advice, particularly advice that was not in line with the governing documents, the Board and the offending homeowners would have likely avoided the seven-year legal battle that ensued.
