Question: We have just been advised by our community association's architectural control committee that our fence is eight inches too high, and allegedly violates some obscure rule within our association. We were told that if we do not lower the fence within 30 days, we will be fined $25 per day until the matter is resolved. We just purchased the property, and our seller (or his predecessor) installed that fence. We certainly want to comply with the rules of our association, but do not want to spend any money removing a fence that we did not install. What should we do?

Answer: This is a very serious problem affecting community associations throughout the country. Many associations have some form of architectural requirements, often enforced by an architectural review committee. Although the scope of these committees varies, the general idea is that in order to keep some semblance of uniformity and balance within the association, owners must receive advanced approval from a committee before any exterior work is done.

However, many owners -- whether in a condominium, cooperative or homeowner's association -- believe that these requirements create an unnecessary, time-consuming -- and often expensive -- burden. Many owners have also had negative experiences with their architectural control committees; we have all read of the cases where these committees acted arbitrarily and without using common sense.

Whenever I hear these stories, I generally paint a mental picture whereby the members of the architectural control committee walk around the community, wearing dark trench coats and carrying binoculars so as to get a better look at all of the problems.

However, design review within an association has at least two purposes: to establish and preserve a harmonious design for a community and to protect the value of the property. The Community Associations Institute (CAI), a non-profit association created in l973 to educate and represent the nation’s 250,000 community associations, has concluded that “properly exercised design review or architectural control protects community association property values by creating and preserving an attractive community.”

However, CAI also warned that these associations “may find themselves embroiled in misunderstandings, controversy or even lawsuits if architectural control is not handled properly.”

When one buys into a community association, one must understand that it is community living. Decisions cannot be unilaterally made, nor can the rules and regulations of the association be unilaterally ignored.

One might disagree with the need for external uniformity, for example, but the fact remains that if the association documents require external uniformity, that is the law of the association and is binding on its members. You should read all of your association documents carefully, to learn the scope and purpose of the architectural review committee.

Having discussed the function and purpose of architectural controls, however, boards of directors of community associations must also recognize that the architectural control committee cannot be a dictator, rendering unreasonable -- and often absurd decisions.

There has been much litigation in the area of architectural controls. The courts have made it clear that covenants are valid and enforceable provided there are clear policy guidelines establishing the overall standards. For example, it probably will not be acceptable merely to say that owners may not make changes to the exterior without first obtaining the written approval of the board or the architectural control committee.

If no specific guidelines have been developed, neither the owner nor the review board will have any objective standards by which to judge the validity of the proposed external change. And without such standards, even the most well-intentioned committee can be accused of being arbitrary.

Boards of directors must establish fairly specific guidelines, and if those rules are not already in your association documents, they should be drafted and approved in accordance with your legal documents, and the laws of the state in which your property is located.

The directors also should be aware that the following will be valid defenses by an owner when the association tries to seek enforcement of the architectural standards:

· Arbitrary and capricious actions have been taken. The architectural standards must be applied fairly and consistently, across the board and in good faith.

It is improper for a board or its architectural review committee to pick and choose the enforcement of the covenants or to go against some -- but not all -- of the owners.

· Delays have occurred. In legal terms, this is referred to as “laches” or “estoppel”. This means that the board has permitted a lengthy period of time to elapse before taking action against an owner. For example, one court ruled that a board's six-month delay in filing suit against an unauthorized fence barred the board from enforcing the covenants.

If an owner is in violation of the architectural standards (or at least the board believes there is a violation), the board must start prompt action to assure compliance of the standards.

· A waiver has been granted. Basically, if the board fails to enforce a covenant in the case of one owner in similar situations, it may be prohibited from enforcing the same standards against another owner.

Often, the association documents require that the committee make a decision within a specified period of time (for example 60 days from receiving the request) or the request "will be deemed to have been approved."

All too often, architectural control boards have been accused of asserting dictatorial powers. Indeed, in one large community, the architectural control committee is consistently referred to as the "KGB." According to one report, committee members were often seen "prowling around the neighborhood with their clip boards, looking for violations."

Often, boards (or their architectural control committees) become obsessed with minor, petty violations and lose sight of reality and common sense.

A considerable amount of money has been spent by both owners and boards of directors in litigation that should never have been brought.

Boards should first sit down with the owner who is alleged to have violated the architectural standards and try to work out an amicable resolution of the problem.

In the final analysis, boards and their architectural control committees must be firm but must also be reasonable and flexible.

In your particular case, I suspect that if you meet with the Board and explain the situation, they will recognize that you have numerous defenses -- ranging from estoppel to waiver -- and may drop their claim against you. Of equal importance, since you recently purchased your home, you should have received a re-sale package from the Board. That document may state that there were no current violations at the time of your purchase, and will be an additional argument in your defense.

If not, your alternatives are simple: either pay the fine and remove the fence or litigate. In addition, you can also mount a major political campaign within your community to either completely abolish the architectural controls, or modify them so that your association is brought into the 21st century. Many of these controls were drafted in the mid- 1980's, and may not have a place in today’s world.