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One of our residents had a non-complying fence (taller than…

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One of our residents had...
One of our residents had a non-complying fence (taller than 4 feet,) erected by one of the two previous owners during the period when the developer was still building houses in the development (and agreeing to anything, in order to sell them!) In other words, that was prior to the inception of our homeowner association. Current owner purchased the house in 2005, and in keeping with our practice in other instances such as this, the HOA did not approach them about removal of the fence. (In addition to the hardship it would pose, counsel advised against it.) Fast forward to 2010, when resident applied for approval of a replacement. Architectural committee notified them that the fence construction and placement both met the requirements of the deed restrictions, but because the height did not, their application was denied. They put it up anyway. HOA isn't taking action, saying the fence is just a replacement of one "approved" pre-HOA. I say we should file suit. What say you?
Submitted: 8 years ago.Category: Real Estate Law
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6/11/2010
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 8 years ago
Law Educator, Esq.
Category: Real Estate Law
Satisfied Customers: 126,810
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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If the HOA has not taken action against the owner because they replaced their existing fence which was granted waiver by the developer, then I am afraid that the failure of the HOA to take that action is good towards only the party who had the fence, but any new parties who try to put up a similar fence without waiver or approval can still be prevented.


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Customer reply replied 8 years ago

I guess I wasn't clear. House built in 1991, sold to 2nd owner in '94, and subsequently, to current owner in 2005. IF developer actually gave a waiver to anyone, it most likely would have been to owner #1 as an inducement to purchase. In any event, developer was out of the picture long before the current owner (a realtor, by the way) purchased it in 2005. This person apparently believes they are entitled to replace the old, non-complying fence that was there when they bought the house, with one that's just as high. One wonders, if they were just going to do it anyway, why bother submitting a request for approval?

So, the question is, is there any way that the developer's action (or lack thereof) has resulted in this property possessing a waiver, in perpetuity, from this particular deed restriction? Nothing that the HOA has done can be construed to be a new waiver. Her application for approval was denied less than 6 months ago, and the fence was erected shortly after.

Customer reply replied 8 years ago

I guess I wasn't clear.  House built in 1991, sold to 2nd owner in '94, and subsequently, to current owner in 2005. IF developer actually gave a waiver to anyone, it most likely would have been to owner #1 as an inducement to purchase.  In any event, developer was out of the picture long before the current owner (a realtor, by the way) purchased it in 2005.  This person apparently believes they are entitled to replace the old, non-complying fence that was there when they bought the house, with one that's just as high.  One wonders, if they were just going to do it anyway, why bother submitting a request for approval?

 So, the question is, is there any way that the developer's action (or lack thereof) has resulted in this property possessing a waiver, in perpetuity, from this particular deed restriction?  Nothing that the HOA has done can be construed to be a new waiver.  Her application for approval was denied less than 6 months ago, and the fence was erected shortly after.

Real Estate Lawyer: Law Educator, Esq., Lawyer replied 8 years ago
The waiver goes with the property, if it did not then owner 2 or 3 would have had to tear the fence down and the new owners get the rights of the waiver granted. If they are replacing the fence with the same fence height they have an argument over the waiver and grandfather rights they inherited from their predecessor in title.
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Customer reply replied 8 years ago

What if there never was a formal waiver, or the owner is unable to provide evidence of same? Could they still prevail in any action against them, employing one of the other defenses commonly used in covenant/restriction violation cases? (ie., laches, estoppel)

Real Estate Lawyer: Law Educator, Esq., Lawyer replied 8 years ago
There does not need to be a formal waiver, the fact the fence was there for all of this time is the waiver and estoppel and laches would apply as well.
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