New Home Owners Assumed it Was OK to Build a Fence, HOA Says Differently

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“We bought a new house an a subdivision and we asked the sales agent and the builder if we can build a 6″ privacy fence, since there a two empty lot beside ours, and the neighborhood behind doesn’t belong to the subdivision. They told us that it would be no problem at all, fill out the ARC and send it, which we did. We never got an answer so we assumed it was approved. We built the fence in November 20th 2011, in January we received a letter from the HOA saying we didn’t ask for permission, and they sent us a new ARC.  We sent it, and they got it in January 20th. A few days ago we received the denial letter saying no perimeter privacy fencing is permitted on any lot. They are asking us to take down the fence. What are our rights in this matter, we paid $4000 for professional fence installation.  Can they force us to take down the fence?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Do I have to tell you what happens when you “assume”?

The HOA, unsurprisingly, is taking the position that the rules are what they are.  You probably got a copy of those rules, including the rule that no perimeter fencing is allowed, when you bought the property.

You asked the sales agent and the builder if it was okay, even though neither of them had authority to give you a definitive answer.  In any case, all you got was an opinion, and instructions to submit to the HOA.

You then submitted to the HOA, and assumed that no answer means yes. When you did that, they would argue, you took the risk that you were wrong in that assumption.

Can you try to make a persuasive argument that you relied on all these factors, and shouldn’t be out four grand for your trouble?  Yes, and at this point I suppose you’ve got nothing to lose by making that argument.  But you’ve got two strikes against you, and your bat is cracked.

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Author: House Attorney

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