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Thursday, June 21, 2018
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Subject: Fence Restrictions - Selective Enforcement
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HarriettB
(Florida)

Posts:1


06/08/2018 6:02 PM  
Our community (in FL) was built in 1983 and the declarations and covenants have been updated 2 or 3 times. Most recently (2016) the restrictions on fences were beefed up quite a bit under the leadership of a board member who doesn't like them. Unfortunately he's the one who approves and denies fence applications. Our declarations require an ACC with at least 3 members, but that isn't in place. My husband and I found out as we were planning the renovations on our home that because of the location of our home (adjacent to a pond) the depth of a fence is restricted to 10 feet from the rear dwelling line. This wouldn't be an issue, except that recently we've become part-time caregivers to our 3 youngest grandchildren ages 6, 3, and 17 months.

We are very careful about supervising the children when they are here, but decided to install a fence which would meet every requirement of the covenants, except we were planning to ask for a variance to the 10 foot rule to give the children room to playmaking the depth 20 feet from the rear dwelling line. Our lot is quite large and even at 20 feet, the fence wouldn't impact anyone's view of the pond, which by the way is the only reason given for the 10 foot rule. Unfortunately when we asked the gentleman who "rules" the fences to stop by so we could show him our plan and explain it prior to submitting the application, he became extremely angry and made it clear that he would never approve the plan and that he would remove the fence if we put it up.

In doing research on Google Earth, looking at fences that have been installed and are being installed, it appears that we may have a fairly strong case for selective enforcement. There are fencing restrictions on multiple types of lots to include the type of material, color, height, and where they can be placed. My cursory investigation turned up at least 7 that are in violation. We sent a letter via certified mail to the HOA president, ACC director, and management company stating what had happened in hopes that we could come to an agreement, but so far there's been no action.

Our next move in this dispute would be to request copies of all fence requests since the June 2016 fencing rules update so that we can see what was approved and what was denied and why. The update has language stating that any fence request not acted on in 45 days is automatically denied, but the ACC section of the covenants states that any ACC requests not acted on in 30 days are assumed approved.

I'm looking for feedback from anyone who may have been in a similar situation and what they needed to prove selective enforcement as well as thoughts on the discrepancy in the timeline for approval.

ArtL1
(Florida)

Posts:89


06/08/2018 6:20 PM  
Two questions that need to be asked/answered about other members' fences...

1) Did they receive HOA approval?

If they did, and any have done what you want to do, then you have a good case for selective enforcement.

2) If they did not, are they openly visible and have they been in place more than 5 years?

5 years is the statute of limitations for contract enforcement in FL. If the HOA has "ignored" violations of your fence restriction for >= 5 years, you have a good argument that the HOA has waived its right to enforce that restriction until it notifies all members that it plans to begin enforcing it again. Any fences built in the mean time would be grandfathered in.

Of course, it sounds like you'll be headed for a legal battle with the HOA if you go this route, so I'd strongly recommend you consult legal counsel well versed in HOA/property law before building your fence in violation of HOA restrictions.
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Forums > Homeowner Association > HOA Discussions > Fence Restrictions - Selective Enforcement



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