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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 117361
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Do Homeowners Associations have an obligation to prevent occurrence

Customer Question

Do Homeowners Associations have an obligation to prevent occurrence where a homeowners has erected a 6 foot fence that obstructs the view from the sunroom/porch of another property owner, who is physically disabled and uses the sunroom/porch mainly in view of not being able to get out and around as much as those individuals who do not have restrictions from a disability?
Submitted: 4 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 4 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If such a structure is against the covenants or bylaws of the association, the association has the right to prevent the structure from being built. The board is supposed to enforce the bylaws and if they have not enforced the bylaws and rules then any owner can file a complaint with the board. If the board is not enforcing bylaws and did not grant a waiver for the fence then the owners can file a suit for declaratory judgment in the court to get the court to issue an order to the HOA to properly enforce their bylaws.

Of course, the board can legally grant a waiver to allow a homeowner to build a fence and if the board took a proper vote and the bylaws do not prohibit granting of waivers. You need to review your bylaws about that.

Maryland courts have held that there is no legal right of a landowner to a view, so blocking a view is not a legal cause of action in MD.

You need to review your bylaws, check to see if a waiver was properly granted for the fence and if not you can file suit against the HOA to make them do their job and enforce the bylaws if they refuse to do so.

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Customer: replied 4 years ago.

You talked about the covenants and if they allow a waiver for a 6' fence. I have studied all the covenants. Well, they do have 6' fences as an exception, but the homeowners had no real valid reason for the exception actually, and the fence they constructed is actually less safe and secure than even a 4' fence. Although I mentioned a view, sitting in a sunroom as I do because of extensive mobility limitations cuts off a way I have of "getting out" and it comprises an ADA-related accommodation that was cut off because of the fence. It's more than just a view, and the ADA is a federal-supported law, so I wanted some insight into exploring that type of argument. Perhaps you don't know?

Expert:  Law Educator, Esq. replied 4 years ago.
Thank you so much for your wonderful feedback.

I apologize in that I did not write your covenants and, of course, if you read above you decided to leave that important fact out as well, but you have decided to blame me and insult me for things that were not my fault as you provided the question and decided to leave facts out. You truly are shooting the messenger here and I wish you would think about that as none of what you are angry about has nothing to do with me as I neither made the laws or your covenants and bylaws and can only give you information on what they say and not make up some magic argument that does not exist in the law and for that I am truly sorry, but it would be wholly improper and unprofessional of me to make something up to give you what you would like to hear and then when you go off and try it you lose.

In fact the ADA is a provision to protect people from discrimination in housing. What the ADA does NOT do in housing is grant them special privileges that nobody else enjoys. It grants reasonable accommodation to access to public areas. If your neighbor's fence is preventing you from accessing some type of right of use, you have to establish the fence is interfering with some right in order to use that as an argument seeking some reasonable accommodation.

Now here is what your courts, not me, say about your right to your view regardless of your disability or not. As long as the public facilities and common areas conform to the ADA building code standards, your HOA is in compliance. If your neighbor has installed a fence on their property, then the law says exempt from the ADA only if they are "not in fact open to the public[.]" 42 U.S.C. § 2000a(e); see also 42 U.S.C. § 12187 (the ADA does not apply to private property).

If the fence is in a common area and it denies you access because of your disability, then you can pursue them to remove the fence because you cannot gain access to the common property.

I really hope you understand that I would be negligent to make up something that does not exist under the law and that while many times customers think that lawyers can come up with obscure or magic parts of the law nobody found before, that is really not the case and when lawyers tell customers something just because they know the customer wants to hear it, the lawyer is being unprofessional and negligent and I would hope you appreciate truthfulness.