New Jersey court reads a fence covenant against the HOA
New Jersey court reads a fence covenant against the HOA
2026-09-15 · New Jersey · Courts
A New Jersey homeowners association lost a fence case because its declaration said two things and the more specific one said less.
The Estates at Layton's Lakes Homeowners Association, Inc. v. Bonnie Watson and Lorraine Bock, Docket A-3123-23, was submitted April 30, 2025 and decided May 7, 2025. It is unpublished and not precedential under R. 1:36-3.1
The conflict inside the declaration
The declaration contained a general covenant imposing a 30-foot setback on accessory structures. It also contained a separate, fence-specific covenant, which said nothing about setbacks and instead deferred to the municipal ordinance.
The homeowners built a fence four inches from the property line, under a municipal permit. The association sued.
The holding
Summary judgment for the homeowners, affirmed. The fence-specific covenant governed. Because the general accessory-structures clause did not mention fences, the panel applied expressio unius est exclusio alterius — the omission was treated as deliberate.
The rule of construction
The panel restated it plainly: "Restrictive covenants are strictly construed, and any ambiguities must be resolved in favor of the homeowners' unrestricted use of their property."
That is not a new proposition in New Jersey. What makes this decision useful is the setting — an ordinary suburban fence dispute in which the association's substantive position was reasonable and its drafting was not.
Two canons doing the work
The outcome rests on the interaction of two familiar interpretive rules, and it is worth separating them because they cut differently.
The first is that the specific controls over the general. A declaration that addresses fences in their own covenant has, by doing so, told the reader that fences are governed by that covenant. The second is strict construction against restriction: where a covenant is capable of two readings, the reading that leaves the owner freer wins.
Either one alone might have been arguable. Together they left the association with no path: the fence covenant was the operative one, and to the extent its silence on setbacks created ambiguity, the ambiguity ran to the homeowners.
Why "our ordinance-deferring clause is a floor, not a ceiling" did not work
Associations frequently draft covenants that defer to municipal standards, intending them as a minimum on which the association's own, stricter standards sit. That intention is rarely written down, and it was not written down here.
A clause that says a fence must comply with the municipal ordinance, in a declaration that elsewhere sets a 30-foot setback for other structures, reads naturally as: the ordinance is the fence standard. A court applying strict construction will take the natural reading.
What this means for New Jersey boards — at the category level
The decision does not hold that associations cannot regulate fences, or that municipal permits override declarations. Neither proposition follows. What it establishes for the category is narrower and more useful: where a declaration contains both a specific covenant and a general one covering the same improvement, the specific one is where the dispute will be decided, and its silences will be read as permissions.
Three practical consequences follow for a board reviewing its own documents. A specific covenant that defers to municipal standards should say expressly whether association standards apply in addition. A general accessory-structures clause should either name the improvements it reaches or state that it applies to all improvements including those addressed elsewhere. And architectural guidelines adopted by resolution are not a fix for a declaration that has already answered the question — in New Jersey a board rule cannot ordinarily impose a restriction the declaration does not support.
The litigation economics
Worth stating, because boards underweight it. The association pursued a four-inch fence through summary judgment and an appeal, and lost both. The cost of that is a common expense borne by every owner in the community, including the ones who were indifferent to the fence.
New Jersey's PREDFDA framework requires associations to make alternative dispute resolution available for housing-related disputes as an alternative to litigation. A covenant-interpretation disagreement of this size is what that machinery exists for, and it is a great deal cheaper than discovering in the Appellate Division that the declaration reads against you.
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