2026-09-10 · Kentucky · Courts

What happened. The Kentucky Court of Appeals upheld a homeowners association board's refusal of a six-foot fence — in a community where roughly eighteen of 151 homes already had one, including two belonging to board members, and where nothing in the governing documents specifically prohibited six-foot fences.¹

Strause v. Bradford Grove Homeowners Association, Inc., No. 2024-CA-0788-MR, was rendered on 22 August 2025 on appeal from Jefferson Circuit Court. Judge Caldwell wrote, joined by Judges Cetrulo and A. Jones. NOT TO BE PUBLISHED.

The holding on the approval clause

The Declaration required board approval for any fence or structure. The owner argued that widespread non-enforcement waived the requirement, and that because no document banned six-foot fences, none could be refused.

The court's answer separates two things that owners routinely conflate:

“[T]o categorically forbid all six-foot fences, Bradford Grove's governing documents would have to be amended. However, despite the lack of explicit prohibition… Bradford Grove homeowners were still restricted from building or altering fences on their properties without obtaining Board approval first.”

In other words: the association had no rule against six-foot fences, and did not need one. The approval requirement was itself the enforceable restriction.

On waiver, the court leaned on the Declaration's non-waiver clause: “Consistent with our opinion in Colliver, we construe the non-waiver clause in the Declaration as additional support for rejecting Strause's assertion of waiver.” A footnote is candid that no binding published Kentucky precedent upholds a restriction against waiver on the strength of a non-waiver clause alone, and points to Indiana authority as persuasive.

The immunity holding

The owner also sued the directors personally. The court held them immune under KRS 411.200, Kentucky's statute protecting unpaid directors of nonprofit organisations, finding no evidence of a violation of KRS 273.215 and no basis for punitive damages under KRS 411.184.

This is the clearest recent application of that immunity to a Kentucky community-association board.

1. Strause v. Bradford Grove Homeowners Ass'n, Inc., No. 2024-CA-0788-MR (Ky. App. 22 Aug. 2025) (not to be published) — opinion PDF ↩
2. Muth v. Phillips, No. 2024-CA-1033-MR (Ky. App. 15 Aug. 2025) — covenants enforced with no non-waiver clause ↩
3. Strunk v. Taylor, No. 2025-CA-0830-MR (Ky. App. 1 May 2026) — specific covenants cabin discretion ↩
4. KRS 381.791, Amendment of declaration — Termination of declaration and association ↩