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  1. #1
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    Default Neighbor's Fence is Right Against the Lot Line and Side of My House

    My question involves an easement in the state of: Florida

    I bought a property with a Zero Lot Line and the neighbor has fence right up to my house, such that I can not even get to the side of my house to maintain it. Plus it is a rental so cannot get a hold of the owner.

    Reading the HOA coventents they state:


    Exhitbit "C" Additional Provions Paragraph 3 states:

    3) The owner of a Residential lot adjacetn to a Residentila Dwelling Unit construceted on the propery within five feet of such Residential lots side lot line .... grants to the owner of such Residential Dewelling Unit (referred to as "Zero lot line Home" an easement extending five feet from the foundation of such Zero Lot line Home ... for such owner to maintain and repair the exterior of such zero lot line home.

    So according to that provision there is a 5' easement for the Zero Lot Owner can maintain there property. Normally you are not allowed to build a fence across an easement.

    I called the city enforcement and they say they have no authority over it. I called the HOA and they say they say it is a civil matter between me and the neighbor.

    Q1) Is the HOA responsible for enforcing its covenants or are you as a home owner responsible and

    Q2) If I have to take this to court, which court;district or civil; oversees this type of action. I have filed small claims before, but not an action to make someone remove their fence. Which form do you file?

  2. #2
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    If the restriction on the placement of the fence comes from the HOA's CC&Rs, and not from local zoning ordinances, then the city is correct -- it's a civil matter. If the HOA chooses not to enforce its rules, you can consider running for the HOA and trying to change its policies toward rule enforcement. It is possible that the HOA failed to establish its power within the restrictive covenants to enforce those covenants -- that's a trap into which any number of Florida HOAs have fallen, and it can be exceedingly difficult to convince homeowners to unanimously grant the HOA enforcement authority.

    An action to enforce a real estate covenant would be filed in the circuit court. This is not a matter of simply filling out a form -- you'll need to draft a complaint.

  3. #3
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    The HOA must have permitted that fence to be built (Architectural Review Committee). It’s their responsibility to enforce the HOA’s Declaration of Covenants, C&R. This fence is in violation of those Covenants.

    The only contact number I even have for the HOA is the property manager. I requested the HOA president name and contact and it has not been provided.

    The property manager just sent:


    If there is an encroachment issue it must be settled between you and your neighbor, as this is a civil matter having to do with the property line. The association is responsible for common areas but does not get involved in civil matters between neighbors.

    I am thinking is she qualified to give out legal advi

    I am looking at Florida Statue 720.311 Dispute resolution. Do you have any insight into that.

  4. #4
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    Quote Quoting rwbil
    View Post
    The HOA must have permitted that fence to be built (Architectural Review Committee). It’s their responsibility to enforce the HOA’s Declaration of Covenants, C&R. This fence is in violation of those Covenants.
    Actually, it's very possible that the fence was constructed without the involvement of the HOA. Not every homeowner goes through channels. You can discuss with the HOA whether there is any merit to your hunch.
    Quote Quoting rwbil
    If there is an encroachment issue it must be settled between you and your neighbor, as this is a civil matter having to do with the property line. The association is responsible for common areas but does not get involved in civil matters between neighbors.

    I am thinking is she qualified to give out legal advi[ce]
    It doesn't matter whether or not she's qualified to give legal advice as that's not legal advice -- it's a description of the HOA's policies.
    Quote Quoting rwbil
    I am looking at Florida Statue 720.311 Dispute resolution. Do you have any insight into that.
    If you want to sue the HOA, you need to meet the statutory prerequisites to suing the HOA. But as the HOA is not obligated to enforce the CC&Rs in the manner you would prefer, you would be barking up the wrong tree. Again, if you don't like the way the HOA does business, you should consider running for the HOA and attempting to change its policies once elected.

  5. #5
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    The covenants state to build a fence it must go through the ARB. Yes you are correct they very might have built the fence without doing such, but that again is in violation of the covenants. It is the HOA responsibility to enforce its covenants not the neighbors.

    I do not believe the property manager is providing a description of the HOA documents as there is nothing in the HOA as their are no such words in those documents.

    I also do not believe it is up to the property manager to decide which convenants the HOA will and will not arbitrarily enforce.

    I cannot believe it is up to the sole discretion of a property manager. There must be a process required; hearing, mediation or arbitration in regards to the HOA enforcing their covenants.

  6. #6
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    You're not paying attention. The HOA does not have to enforce its CC&Rs in the manner you would prefer. They can pick their battles. They can let things slide. Also, as you have already been told, some HOA's made mistakes in their formation that prevent them from being able to enforce their CC&Rs.

    If you don't like the way your HOA does business, again, run for the board and try to change the way it does business.

  7. #7
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    I understand the HOA does not have to enforce every Covenant. But my point is it is not up to the property manager to decide which covenant they will enforce. I have now requested the property manager 3 times for the name and contact information for HOA president and they still have not provided such.

    My first avenue is to get the HOA to enforce their covenants. Do you have any advice on that, such as should I demand a hearing on the issue.

    You stated some HOA made mistakes in their formation that prevent them from being able to enforce their CC&Rs. Do you have any advice one how one find out that information.

    Lastly if I have to file a motion requesting an order from the court, I plan act as Pro SE Litigants. Do you know of any free legal services or information on examples of filing a motion of this nature requesting the court to have the neighbor remove his fence as it violates the easement and my use of my property.

  8. #8
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    Again (and again, and again), if you want to convince the HOA to change its policies, run for the board and work from the inside.

    The HOAs powers are defined by the CC&Rs and its bylaws. If you want to know what they are empowered to do you need to review those documents.

    I doubt that you will find an organization that has the resources to provide you with free counsel over this type of dispute. Most legal aid type organizations are overloaded with serious legal cases, and most issue-oriented groups are looking for cases that involve serious constitutional issues. If you want to try to find a lawyer or organization willing to represent you for free, all I can suggest is that you start making phone calls.

  9. #9
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    Default Re: Neighbor's Fence is Right Against the Lot Line and Side of My House

    this is an easement granted to you, the enforcement of said easement is up to you, the HOA is not obligated or, as far as i can tell from the snippets you posted, even authorized to take such an action.

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