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I am a new homeowner in Tampa (Carrollwood) FL. When the…

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I am a new homeowner...
I am a new homeowner in Tampa (Carrollwood) FL. When the sellers sold me the house. they constructed a property fence with a gate that abuts to my neighbor's existing fence. The HOA did not require the sell to remove the fence prior to sale and offered no objections to the sale at closing. Now that I am the owner, I want to replace the fence that was constructed by the seller. The HOA is now claiming that the original fence was on a drainage easement and pursuant to a FLorida law, it is prohibited. Thus I am being told to move my intended fence to 10ft off of the easement. My question is this: If the neighbor's fence was constructed more than 10-year ago on the easement and no objection were considered until after I requested to replace a fence constructed by my seller; do I have any legal remedy to continue with my replacement fence, even though it is on the drainage easement? I am being told that "any" construction on an easement is prohibited. I want to know what Florida or Hillsborough County law would I have to comply with?
Submitted: 2 years ago.Category: Real Estate Law
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Answered in 14 minutes by:
3/3/2016
Real Estate Lawyer: Lucy, Esq., Lawyer replied 2 years ago
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 32,264
Experience: JA Mentor
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Hi,

I'm Lucy, and I'd be happy to answer your questions today.

A person who has an easement can't build on it in a manner that prohibits the holder of the easement from using it. However, if you have a easement for drainage only, and you're not interfering with drainage by having your fence where it is, the general easement statutes don't say anything about that. You may want to ask them WHICH Florida law prohibits having a fence on an easement. People love to say things like "State law says...." without ever verifying that such a statute exists. If they're saying that the ACTUAL easement prohibits anything being built on it, check the language of the easement. That's a little different.

The law of adverse possession says that a person who occupies the property of another, exclusively and continuously, for the statutory period, gains ownership of the land. But that doesn't really apply to your situation where it's undisputed that you own the land and they're talking about an easement. It is possible to REGAIN land beneath an easement by preventing the easement holder from using the property for 10 years - but again, if the purpose is drainage, and it's still being used for that purpose, then building the fence wouldn't have any affect.

See if they'll clarify what law they think you're breaking. If it's an issue with the CC&Rs, that's a little different. But what you should know is that, if you build where the HOA has told you not to, they can impose fines on you every single day until you go to court or until you take the fence down. So, it's when a homeowner has this type of dispute with an HOA, it often helps to have a local attorney reach out to them before acting, so you can hopefully avoid a lot of trouble down the road.

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