Q: We have a dog that will need to be contained when we move into a Homeowners Association. The dog is a very protective large German Shepherd, who has been known to attack smaller dogs and has even nipped a few strangers who have gotten too close to her. Because of these aggressive tendencies, we have to install a large perimeter fence around our new property. However, we have been advised that the architectural guidelines in our new association limit the type of fence to either a split rail or post-on-board, with a maximum height limit of four feet.

This kind of fence will not contain our dog. We have discussed the matter with the architectural review coordinator and were told that only under "extreme extenuating circumstances" will an exception be made to the rules.

Do you think that we have a valid case for requesting an exception to the fence height/type restriction? Additionally, if a homeowner has served notice to the Board that as a result of the fence restrictions, there may be injury to or by a pet, will the Board and the Association be held responsible if an injury does, in fact, occur?

A: It never hurts to ask for a waiver of the architectural control guidelines, but I seriously doubt that you will receive any exception to these rules.

At the outset of this column, let me share with you two basic facts. First, having had several German Shepherds over the years, I appreciate your fondness for your pet. Second, I have a strong dislike for architectural controls, since they often create a very bland, monotonous community Association.

However, having said this, I also recognize that owners who live in a community Association have to abide by the rules and regulations of their Association. You have indicated that you are just moving into the community. I assume -- indeed hope -- that you read all of the rules (including the architectural controls) before you committed yourself to buy into that community. Clearly, under the laws in Maryland, Virginia and the District of Columbia, you had the absolute right to review all applicable regulations relating to the Association and had the right to terminate your sales contract if you did not like what you saw.

Incidentally, I am assuming for purpose of this column that there are no restrictions on pets in your Association.

The guidelines in your Association contain fence restrictions. Why should the architectural control committee -- or the Board or the majority of the other owners for that matter -- agree to give you an exception? While I agree that this will be a hardship -- and a potential liability -- on you, in my opinion, this situation was created by you. Clearly no one forced you to move into this community? You knew -- or should have known about -- the fence restrictions. You knew that you have a potentially dangerous dog. I do not believe that the Board will grant you an exception.

As indicated earlier, it does not hurt to ask for an exception. You should consider offering to hold the Board and the members of the Association harmless should there be an incident involving your dog. You should make sure that your homeowner’s insurance policy will cover any damage to person or property caused by your dog.

You asked whether the Board would be liable for any damage should it refuse to bend the fence restriction rules. The clear answer is no.

First, community Association Boards of Directors in many states in this country are protected by what is known as the "Business Judgment Rule". The Courts have long held that members of a Board of Directors will not be held responsible for making bad decisions if they exercised good business judgment in the decision making process. While there is no definitive definition of "good business judgment", a Board member will not be held responsible if he/she has carefully studied the issues, reviewed the facts with outside professionals such as the Association property manager and attorney, and canvassed the community to get a sense of the house. Of course, if a Board member will obtain a financial benefit as a result of the decision, and if this benefit has not been disclosed to the other members of the Board, that member may be found to have breached the fiduciary duty he/she owes to the community.

There is yet a second reason why the Board can not be held responsible should an injury occur to or by your dog. The Board is upholding and enforcing its published rules and regulations. You have asked for a waiver of these fence restrictions, which has been denied by the Board. You -- and only you -- will be held fully responsible should your dog bite or otherwise injure someone in the future.

My advice: ask the Board for an exception. If this is denied, you really only have a few options:

1. Determine if there are alternatives to control your dog, such as an electric fence;
2. Move to another location where you can have the appropriate fence, or
3. Give up your dog.