Selective enforcement of deed restrictions

by Simone
(Sarasota, Fl, USA)

Visitor Question: I live in Gulf Gate, Sarasota. After living in this neighborhood and the same house for 20 years we decided to replace an old 4 foot fence with a 6 foot fence and also purchased a shed.

One week later we’ve received a letter from the home owners association informing us that we were in violation of the deed restriction regarding the fence and the shed and were given one week to take them down. We didn’t.

After reading the deed restrictions rules we sadly realized we were in violation. But after walking around the neighborhood I noticed that there are way too many houses with sheds in their backyard and tall fences.

Today, 4 months after receiving the first letter, we received the second notice asking for immediately response.

I stopped to talk to a neighbor, who lives 5 houses down the street, who has a tall white fence all around his house. He said he cut a deal with them. It was a long nasty battle. In the end they allowed him to keep his fence. His reasoning was that he needed to keep his disabled son in, to protect him.

It turns out that we are in the same situation as him. I also have a disabled son who would climb the short fence and go out into the streets. It's very unsafe. My question is do I have a case? How should I proceed?

Editors Reply: Simone, we are sorry we overlooked your question. Probably by now, you have made a decision and acted on it. We will answer anyway, as it may help others.

Selective enforcement of deed restrictions is widespread, partly because HOA boards are comprised of volunteers who often lack relevant experience, and partly because there tends to be some favoritism in developments. So you are not alone in being singled out for enforcement.

It was smart to ask one of your neighbors who has a fence technically in violation of the deed restrictions. It sounds as though the HOA board decided to look the other way in his case, and maybe they will do the same for you. Yes, definitely cite the fact that you have the same circumstances as your neighbor and point out repeatedly that they have made an exception to their enforcement policy before.

You also might suggest that since there are many violations in your development, perhaps it is time to look at changing the deed restriction covenants. That may or may not be feasible, depending on what rules the master deed sets up for changing covenants. But we always suggest that HOA boards and planning commissions consider and deliberate about changing rules that repeatedly are being violated or that cause requests for exceptions.

So in your case, yes, we think you are justified in asking the HOA to waive its enforcement action regarding your fence. You haven't given a rationale for allowing your shed to stay up, but perhaps you can use removal of the shed as a bargaining chip to allow the fence rule to be ignored in terms of enforcement.

Dedicated readers of our site may be surprised to see us taking this stand, as usually we stick with a line like this: Just because your neighbor is getting by with something is no reason to think you should be able to do so also. The analogy is speeding; just because someone else is speeding doesn't mean the officer is going to let you off the hook.

But in this case, due to the disability and the directly comparable situation a few doors away, we think asking for enforcement to be suspended is at least a reasonable request.

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