January 1, 1900

Ronald L. Perl

"If it looks like a duck, walks like a duck, and sounds like a duck, it’s a duck." Fences too are defined by their function, not by what they are called, the New Jersey Supreme Court has held.

Over the years, a number of cases have arisen concerning prohibition or regulation of fences within planned communities. Often, the dispute centers on whether plant material or another natural barrier is a "fence" for purposes of the use restriction. Recently, in the case entitled Bubis v. Kassin, the Supreme Court found that an eight foot high sand berm topped with bushes and trees constituted a fence for purposes of a restrictive covenant and local zoning ordinance. Although the case did not involve a community association, it did concern a restrictive covenant running with the land. Since community association declarations consist of covenants running with the land, the analysis of the Supreme Court in the Bubis case is instructive for community association practitioners.

Ocean View Blocked

Sophie Bubis is the owner of a home on Ocean Place in the Village of Loch Arbour, New Jersey. Her house is located directly across the street from the beach. Until 1995, the beach property was used as a recreational beach open to the public for a fee. During that time, Mrs. Bubis had a view of the beach and ocean through a chain link fence on the beach club property.

In 1995, the Kassins purchased the beach club and converted it to their exclusive private use. Shortly after the purchase, they constructed an eight feet high sand berm behind the chain link fence and planted bushes and trees at the top of the berm. The total height of the berm, trees and shrubbery was between 14 and 18 feet. Mrs. Bubis was deprived of her view of the beach and ocean.

Mrs. Bubis sued the Kassins, alleging their violation of a restrictive covenant dating from 1887 which prohibits the construction of fences higher than four feet on the beachfront property. In addition, a municipal zoning ordinance of the Village of Loch Arbour contains a restriction on fences. It provides that all fences must be made from chain link or a similar fencing material and prohibits the use of any webbing on the chain link fence. The ordinance prohibits any fences or hedges in excess of six feet in height.

Mrs. Bubis argued that the vegetated berm was the "functional equivalent" of a fence, and that it satisfied the dictionary definition of the word "fence." The Kassins responded that the berm was a "dune" and did not constitute a fence as that term is ordinarily used. The Kassins also argued that New Jersey’s Coastal Area Facility Review Act (CAFRA), which regulates sand dunes, preempted the local zoning ordinance. The CAFRA issue is beyond the scope of this article and will therefore not be discussed. However, the Court’s analysis of the definition of "fence" is important to community associations and deserves attention.

Analysis Focused on Purpose

The Court’s analysis began with a review of several dictionary definitions of the term "fence" including the definitions found in Black’s Law Dictionary,Webster’s Third New International Dictionary,The American Heritage Dictionary, Second College Edition, and others. The Court concluded that while there is no single definition of the word "fence," there are two "guide posts" for analysis. First, no definition limits the type of material from which a fence can be constructed. Any definition which lists materials for building fences uses them as examples only. Second, the Court observed that the various definitions agree "that the user’s intent and the actual function of the structure are dispositive in ascertaining whether a structure is a fence." The Court concluded in this regard "that a fence is defined primarily by its function, not by its composition. As long as the structure marks a boundary or prevents intrusion or escape, then it is a fence, regardless of the material from which it is forged. This is the ordinary understanding of Îfence.’"

The Court then analyzed cases from other jurisdictions, beginning with a well known community association case from the State of Washington. In Lakes at Mercer Island Homeowners Ass’n. v. Witrak, a Washington appeals court case, the court found that a row of trees along the property line of the Witrak lot constituted a fence within the plain meaning of that term. Applying the particular facts before it, the New Jersey Supreme Court held that the Kassins’ berm constituted a fence because: a) "it is a partition that separates the Kassins’ property from the street;" and b) "it prevents intrusion from without."

The Kassins had argued that the berm was constructed to protect the beach and was therefore a dune. The Court observed that the berm could not protect the beach from erosion because there was no sand behind the berm. Because the berm and plantings constituted a sizable and imposing presence along Ocean Place and because the Kassins placed it along the boundary of their premises, the Court found that this berm functioned as a fence.

Berm Violated Restrictions

The next step for the Court was to determine whether the fence violated the 1887 restrictive covenant. While restrictive covenants are generally subject to strict construction, the Court reasoned that a covenant should not be read in such a way that defeats its plain and obvious meaning. Although the covenant itself did not express its underlying purpose, the Court found that the most likely intended purpose was to enable nearby residents and passers-by to have a view of the beach and the ocean. The Court therefore held that the Kassins’ fence was violative of the restrictive covenant.

The Court also found the fence to violate Loch Arbour’s zoning ordinance, utilizing an analysis similar to that employed with regard to the restrictive covenant.

Some community association governing documents are precise in defining the term "fence" in the context of prohibition or regulation. Others, which simply prohibit "fences" of a certain height or dimension, present more difficult issues of interpretation, especially when plant material is used as a screen or fence. This New Jersey Supreme Court case gives guidance as to how the courts are likely to interpret such a restriction.

Ronald L. Perl is a partner of Hill Wallack where he is partner-in-charge of the Community Association Law Practice Group. He is an Adjunct Professor at Seton Hall Law School and a member of the College of Community Association Lawyers.