Illinois HOA Fence Disputes: Can a Court Require a Fence to be Removed Under the HOA’s Restrictive Covenants?

Disputes over the installation of fences are some of the most common disputes faced by homeowners associations. In many Illinois HOAs, the restrictive covenants will completely ban the installation of fences.  In other cases, the deed restrictions only permit certain types of fences or require an owner to obtain permission to install a fence from the board or architectural control committee. Unfortunately, given that many owners in common interest community associations fail to familiarize themselves with the HOAS restrictive covenants, it is common for fences to be installed in violation of the restrictive covenants.  As discussed in this article, Illinois courts will typically enforce HOA restrictive covenants that prohibit fences by ordering the removal of a fence.  However, as will be demonstrated by a recent case, Quinn v. Helms, 2025 IL App (4th) 241035-U, ¶¶ 3-58, 2025 WL 1139162, consistent enforcement of deed restrictions related to fences is important, as an owner may be able to establish a defense of waiver if the restrictions have been ignored in the past.

Court Grants an Injunction to Remove Fence Built in Violation of Illinois HOA Bylaws

In Countryside Lake Ass’n v. Hahn, 2022 IL App (2d) 210433-U, ¶ 2, 2022 WL 1564605, at *1, appeal denied, 197 N.E.3d 1091, 459 Ill. Dec. 199, 2022 WL 4995116 (Ill. 2022), the Illinois Court of Appeals upheld an injunction requiring an owner to remove a fence that was built in violation of the declaration for the homeowners association.  In that case, the HOA was charged with operating a common interest community association of 350 members composed of single-family homes and enforcing the terms of the declaration. Article VII, Section 3 of the Declaration provided as follows with respect to the construction of fences:

All plans for construction of private roads, and driveways and all building plans for any building, wall, or structure to be erected upon any Unit and the proposed locations thereof upon any unit and any changes after approval thereof *** shall require the approval in writing of the Board of Directors. Before commencement of construction of any road, driveway, building, fence, wall or other structure whatsoever ***, the person or persons desiring to erect, construct or modify the same, shall submit to the Board of Directors *** two complete sets of building plans and specifications for the building, fence, wall or other structure, as applicable. No structure of any kind, the plans, elevations, and specifications of which have not received the written approval of the Board of Directors and which does not comply fully with such approved plans and specifications shall be erected, constructed or placed or maintained upon any Unit. Approval of such plans and specifications shall be evidenced by written endorsement on such plans and specifications, a copy of which will be delivered to the owner or owners of the Unit upon which respective building, road, driveway or other structure is contemplated prior to the beginning of such construction. No changes or deviations in or from such plans and specifications as approved shall be made without the prior written consent of the Board of Directors.

The declaration also contained the following pertinent language relating to enforcement:

In the event of any default or violation by any Owner *** under the provisions of the Declaration, By-Laws or rules or regulations of the Board, the Board or its agents shall have all of the rights and remedies which may be provided for in the Declaration, By-Laws or said rules and regulations, or which may be available in law or in equity *** or for such damages or injunction for specific performance, or for judgment for payment of money and collection thereof *** or for any combination of remedies *** upon 30 days prior written notice to such Owner, if the default is not remedied in such time.

…

All expenses of the Board in connection with any such actions or proceedings, including court costs and attorney’s fees and other fees and expenses and all damages *** shall be charged to and assessed against such defaulting Owner. *** In the event of any such default by any Owner, the Board *** shall have the authority to correct such default, and to do whatever may be necessary for such purpose, and all expenses in connection therewith shall be charged to and assessed against such defaulting Owner.”

…

No covenants, restrictions, conditions, obligations or provisions contained in this Declaration or the By-Laws shall be deemed to be abrogated or waived by reason of any failure to enforce same irrespective of the number of violations or breaches which may have occurred.

In 2018, an owner installed a decorative metal fence, and the HOA filed claims for declaratory relief and injunctive relief to remove the fence.  After a trial, the trial court ruled that the owners could not have reasonably believed that the HOA board had authorized a decorative metal backyard perimeter fence because the Board consistently communicated that only split rail perimeter fencing was acceptable during the architectural approval process, which had consistently been enforced.  The trial court also held that the declaration contained an anti-waiver clause, so any attempt by the owners to establish waiver of the declaration failed.  The trial court granted an injunction in favor of the Illinois HOA and ordered the owners to remove the fence, along with awarding the HOA $65,760.60 in attorney’s fees, which led the owners to appeal.

On appeal, the owners attempted to argue that the declaration did not require any specific type of fence to be installed.  However, the appellate court rejected this argument as the HOA did not employ any blanket prohibition on fences but imposed reasonable restrictions through rules on what fences would be permitted. The appellate court also noted that prior approval from the HOA was required to install a fence, which the owners did not obtain, and that they chose to construct a fence in violation of the plain language of the declaration.  Accordingly, the court upheld the injunction to remove the fence and the award of attorney’s fees and costs for violating the declaration.

Illinois Court Denies Injunction to Remove Fence Due to Factual Issues

In another fence case, Quinn v. Helms, 2025 IL App (4th) 241035-U, ¶¶ 3-58, 2025 WL 1139162, the Illinois Court of Appeals overturned a trial court’s decision to enter an injunction requiring the removal of a fence under the declaration.  In that case, the HOA’s restrictive covenants prohibited fences from being constructed along or within a lot line “except in connection with a swimming pool” with “written approval of the Developer.” The restrictive covenants also state that “all swimming pools must be enclosed by fencing approved by the developer,” and that chain link fencing was prohibited. The deed restrictions also stated that if plans and a request for approval were submitted, they were deemed automatically approved if the developer failed to respond within 20 days.

In that case, the owners constructed a 6-foot white vinyl fence without seeking approval from the developer.  The plaintiffs, who were other owners in the subdivision, sent a cease-and-desist letter, citing the lack of developer approval to construct the fence. The defendants continued the construction of the fence until it was completed.  The plaintiffs filed a complaint requesting an injunction to remove the fence because it was installed with the developer’s approval, created a private nuisance as it blocked their view, and created a safety issue related to traffic.  The defendants raised the defenses of laches, i.e., that the plaintiffs waited too long to bring the complaint, which resulted in prejudice to the defendants, and that the restrictive covenants had been waived due to non-enforcement.  Like Countryside Lake Ass’n v. Hahn, 2022 IL App (2d) 210433-U, ¶ 2, 2022 WL 1564605, at *1, appeal denied, 197 N.E.3d 1091, 459 Ill. Dec. 199, 2022 WL 4995116 (Ill. 2022), the trial court entered an injunction requiring the fence to be removed.  However, an injunction was entered without a trial, and the Court of Appeals reversed, as will be discussed below, as the appellate court concluded that factual issues existed that needed to be resolved at trial.

On appeal, the defendants first argued that the HOA’s restrictive covenants were not enforceable as there was no access to the procedure to gain approval for the fence.  The appellate court stated that if the developer refused to perform architectural control approvals, the trial court must decide whether the owners were still required to take what may be deemed to be a pointless action. The courts stated that if the evidence demonstrated that defendants’ plans would have been approved by a developer had they been submitted (or been effectively approved by the developer’s inaction), then failure to seek approval in advance would have caused no injury, and that this issue needed to be resolved at trial.

Next, the appellate court held that the trial court overlooked the factual issues arising from the defendants’ defenses of laches, waiver, and systemic nonenforcement of the covenants. The appellate court held that the evidence showed that numerous fences, including prohibited chain-link fences, had been constructed without developer approval. Given that multiple fences had been built without the developer’s approval, the court indicated that the trial court must hold a trial to determine whether the defendants’ equitable defenses had merit.

Key Takeaways for Installing Fences in Common Interest Community Associations

As evidenced by the above cases, it is important for Illinois HOAs to consistently enforce restrictive covenants related to fences.  As demonstrated by Countryside Lake Ass’n v. Hahn, 2022 IL App (2d) 210433-U, ¶ 2, 2022 WL 1564605, at *1, appeal denied, 197 N.E.3d 1091, 459 Ill. Dec. 199, 2022 WL 4995116 (Ill. 2022), a court will issue an injunction to require an owner to remove a fence installed in violation of the plain language of the declaration.  However, consistent enforcement of the restrictive covenants is important, as a failure to do so can potentially lead to equitable defenses of waiver and laches, as was the case in Quinn v. Helms, 2025 IL App (4th) 241035-U, ¶¶ 3-58, 2025 WL 1139162.  While the Quinn case did not appear to have an active homeowners association, and the case involved a dispute between owners, and a developer that had washed its hands of the project, it still demonstrates that a failure to enforce HOA restrictive covenants consistently can create factual issues for trial, which makes litigation more expensive, and potentially weakened, what otherwise would be a strong case for a homeowners association.  As such, common interest community associations dealing with issues related to fences installed in violation of the restrictive covenants should be proactive and engage legal counsel when problems arise, instead of allowing them to drag on for extended periods.