Is Preventing Homeowners from Using Common Rear Yard for Recreation by Erecting Fences Violation of Their Rights ?
In Ronaldson v. Countryside, Manor Condominium (189 A.D.2d 808, 592 N.Y.S.2d 459, lv. dismissed, 82 N.Y.2d 706, 619 N.E.2d 663, 601 N.Y.S.2d 585), the common element involved was the entire yard to the rear of garden style apartments.
Some of the units in the condominium were located directly adjacent to the rear yard and some were not, but every unit had use of the common rear yard for ball playing, dog walking, barbequing, and the like.
There, the Board of Managers permitted unit owners to enclose the property to the rear of their respective units by erecting six-foot fences, essentially resulting in some unit owners gaining private and exclusive backyards.
The Board of Managers passed an amendment to the condominium's by-laws which stated, in pertinent part, that, "homeowners will be allowed to install fences in their rear yards."
The unit owners, who were effectively deprived of the rear yard, brought an action contending that the fences deprived them of the use of the common elements of the condominium.
The Supreme Court granted the unit owners' motion for an injunction compelling the removal of the fences and the Appellate Division affirmed, citing RPL 339-i(3) and (4).
In Ronaldson, the erection of the fences prevented the plaintiffs from using the common rear yard in accordance with the purpose for which it was intended, i.e., recreation, in violation of RPL 339-i.