Q: I live in a homeowners’ association, and our yard is enclosed by a fence that sits a few feet from the lake that my house and several others border. Our association is now telling us that the town said the fences were mistakenly allowed to be put too close to the lake. They are telling us we have to pay to move our fences farther back. We think the HOA should have to pay, since they approved the fences in the first place. Who has to pay? — Anonymous

A: This is a frustrating situation, and I understand your reaction. Unfortunately, the general rule is not on your side, but there are some avenues worth exploring before you write the check.

Start with this basic principle. As a property owner, you are responsible for complying with the zoning, setback, and land use rules in your municipality. Those local rules apply to your property whether or not the HOA knew about them, approved your project, or told you everything was fine.

The town is enforcing its own code against your property, not against the HOA. That is why, in most cases, the cost of bringing your property into compliance falls on the owner.

It may also help to understand how HOA approval actually works. When your association’s architectural review committee approves a fence, they are confirming the fence meets the community’s private rules on things like style, height, color, and placement within the governing documents. They are not giving you a pass on the town’s building code or zoning setbacks. Most sets of governing documents make this explicit, stating that HOA approval does not substitute for required governmental permits or compliance with local law. Even when the documents are silent, courts generally reach the same conclusion.

That said, you may still have arguments to make.

The first place to look is your governing documents. Check whether the HOA explicitly told the original builder or the homeowners where the fence could go, or whether the setback from the lake was part of the community’s approved plan.

If the HOA actively represented that the fence location complied with all applicable rules, or if they were working from plats or plans that set the fence line, you may have a claim that the HOA should bear some responsibility.

Lawyers call this a waiver or estoppel argument, and it arises when one party relies on another party’s representations and is later harmed by them.

You should also find out exactly what the town is actually requiring, and from whom. Has the town issued formal violation notices to each homeowner, or is this coming secondhand through the HOA? Is the town requiring the fences to be moved, or just recommending it?

Sometimes these situations can be resolved by applying for a variance, which allows you to legally keep the fence where it is. The cost of a variance application is almost always less than the cost of moving a fence, and if several neighbors apply together, the case becomes stronger.

Since there are several homeowners in the same boat, pool your resources and hire one attorney to review the HOA’s governing documents, the history of the approvals, and the town’s demand.

An hour or two of professional advice, split among several families, will tell you quickly whether you have a real claim against the HOA or whether your energy is better spent applying for a variance.

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