What You Need to Know
- Restrictive covenants are strictly construed: Courts apply the principle that restrictive covenants must be interpreted literally and any ambiguities are resolved in favor of the property owner's unrestricted use of their land. Here, the court found that Section 8.1(c) of the HOA declaration, which specifically addressed fences and their requirements, governed rather than Section 8.1(dd), which set a 30-foot setback for "accessory buildings" but didn't mention fences.
- Intentional omission doctrine applied: Under "expressio unius est exclusio alterius," the court ruled that mentioning fences in some sections but not in the setback provision (8.1(dd)) indicated the drafters intentionally excluded fences from that requirement.
- HOA's own actions undermined their position: The Association's Architectural Control Committee had approved the fence with full knowledge of its 4-inch setback location, and they only attempted to amend the declaration to add fence setback requirements after the fence was built, which homeowners rejected.
Introduction
In a recent decision from the New Jersey Appellate Division, the Court affirmed an order granting summary judgment, finding that a setback specified in a section of a homeowners association's declaration did not govern fences where the language failed to expressly state that it did and deferred to Town's ordinances. Ests. at Layton's Lakes Homeowners Ass'n, Inc. v. Watson, No. A-3123-23, 2025 N.J. Super. Unpub. LEXIS 760 (App. Div. May 7, 2025).
Background
Plaintiff, the Estates at Layton's Lakes Homeowners Association, Inc. (the "Association"), is a non-profit corporation that governs a residential community in Carneys Point Township. Defendants, Bonnie Watson and Lorraine Bock (the "Defendants"), own a home on a half-acre property within that community (the "Property"). In 2008, the Association recorded a Declaration of Covenants, Conditions, and Restrictions (the "Declaration") that is applicable to properties within the community, including the Property. Further, the Declaration contains a section of "Protective Covenants" which enumerates restrictions on owners' use of their lots.
Specifically, Section 8.1(c) of the Declaration requires that any "fence, wall, hedge, mass planting, or similar continuous structure" must be: (1) a maximum of four feet tall; (2) approved by the Architectural Control Committee (the "Committee"); (3) not in conflict with any municipal ordinance; (4) constructed of wood, white PVC or black aluminum tubing; and (5) of an open style. Carneys Point Township's zoning ordinance (the "Ordinance") barred fences erected less than four inches from a property line without written approval of the adjacent property owner. Carneys Point Township, NJ. Code § 94-12 (1982). Additionally, Section 8.1(dd) of the Declaration provided for a minimum thirty-foot setback on any "accessory building, shed, shack, porch, or other similar type of structure of improvement" located on any lot within the community.
In November 2022, the Defendants sought to erect a fence on the Property. A survey of the Property showed the exact size (forty-eight inches in height) and location of the fence (four inches from the property line along the sides and back of the property). The Defendants obtained a permit from the zoning board, as well as approval from the Committee which did not advise that the height or location of the fence violated the Declaration. After the fence was constructed, the Association attempted to amend Section 8.1(c) of the Declaration to add a ten-foot setback restriction to all fences within the community, despite their later claim that the setback in Section 8.1(dd) applied to fences. The proposed amendment was rejected by homeowners.
In September 2023, the Association filed a complaint seeking a declaratory judgment determining that Section 8.1(dd) of the Declaration governs fences within the community and sought injunctive relief requiring the Defendants to remove the fence because it was located within the designated thirty-foot setback.
In response, the Defendants filed an answer and counterclaim requesting that the trial court rule that Section 8.1(c) of the Declaration governed fences and that it deferred to the four-inch setback stated in the Ordinance.
The Chancery Court granted summary judgment in favor of the Defendants, denying the Association's motion for summary judgment. The trial court held that a clear, unambiguous reading of the Declaration shows that Section 8.1(c) governs fences and defers to the Ordinance in which the defendants' fence does not violate.
The Decisions
On appeal, the Association asserted that the trial court incorrectly determined that Section 8.1(c) of the Declaration deferred to the Ordinance regarding fence setback requirements for two reasons: (1) the trial court interpreted Section 8.1(c) in isolation and failed to consider broader context of the remaining provisions in the Declaration, specifically Section 8.1(dd); and (2) the trial court based the decision on the judge's personal opinion that the setbacks were not "aesthetically pleasing" and differed from setbacks in other communities.
The Appellate Division rejected the Association's first argument stating that the mention of "fence[s]" in Section 8.1(c) of the Declaration, but not Section 8.1(dd), implies the omission was intentional. The Declaration is a restrictive covenant that is subject to the general rules of contract construction, including contract interpretation focusing on the intent of the parties. Under the doctrine of expressio unius est exclusio alterius, the inclusion of one thing implies the intent to exclude another not mentioned. Moreover, restrictive covenants are subject to strict construction in which a judge should interpret a document according to its literal terms without looking to another source to determine its meaning. Any ambiguities in a restrictive covenant must be resolved in favor of an owner's unrestricted use of their property.
Here, Section 8.1(c) of the Declaration expressly applies to fences and is silent on setbacks, but requires that a fence must be approved by the Committee. However, a fence must not be in conflict with any municipal ordinance, which requires a four-inch setback in Carneys Point Township. Section 8.1(dd) appears twenty-seven paragraphs after and does not have the word "fence." The word "fence" only appears in Sections 8.1(c) and 8.1(z) (which does not apply to the Property) of the Declaration, not Section 8.1(dd). The mention of "fence[s]" in other sections and exclusion from Section 8.1(dd) implies the omission was intentional. Thus, in its entirety Section 8.1(c) applies to fences and defers to the Ordinance in which the fence on the Property does not violate.
Further, the Ordinance was enacted twenty-six years prior to the recording of the Declaration, so the Association should have been aware of Carneys Point Township's four-inch setback requirement for fences. If the Declaration drafters intended a greater setback, then they should have expressly stated so. In fact, the Association had the opportunity to advise that the fence was in violation of the Declaration when the Defendants presented their application to the Committee. Instead, their application, with a survey depicting the exact location of the fence and an indication of four-inch setback, was approved for construction on the Property.
Lastly, the Court found no support in the record for the Association's argument that the trial court's decision was based on the judge's personal opinion. The judge determined that Section 8.1(c) governed fences, not Section 8.1(dd), through analyzing Declaration's plain and unequivocal language. The trial court judge did not attempt to rewrite the Declaration or find a meaning for its language outside the bounds of the document. Rather, he merely made a remark stating he had never heard of a thirty-foot setback for fences and such a setback would significantly reduce the size of Defendants' useable yard.
Takeaway
This case highlights that restrictive covenants are strictly enforced against those seeking to exercise them and must be set forth in clear unequivocal language. The absence of clear language will lead a court to decline to enforce such a covenant. For a copy of the decision, please contact Michael O'Donnell at modonnell@riker.com, Matthews Florez at mflorez@riker.com or Shelley Wu at swu@riker.com. We acknowledge our Summer Associate Maya Pacheco-Smith, Rutgers Law School, for her valuable contribution to this post.
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