Issue with drainage easement and fencing in Florida

I currently live in Seminole County Florida and my yard has a 10 foot drainage easement that ends at a chain link fence. I want to build a fence that connects to this fence but my HOA is saying that I am not allowed to build a fence on the easement. I called the county that I live in and they said that there is no issue building a fence on an easement I just have to sign a waiver stating that if they need access to that area and there is a need to remove the fence then I am responsible for that cost. After finding this out I was then told that it doesn't matter what the county allows the HOA doesn't allow building on an easement? Is this legal? Does it have to be in the HOA bylaws in order for them to have this kind of rule? It's going to cost me over $300 not to build to the chain link fence as this will then require me to purchase 40 more feet of fence so I would like to be able to do this if I am legally allowed to. Any information from more experience HOA members would be appreciated.

Bob,

Typically, the covenants require prior approval from the Association before making any exterior changes. Even if the County has no issues with your building a fence, if you require prior approval and the Association says no, then it's likely that you will not be allowed to build the fence.

Your alternatives are to elect a board that will approve your application for a fence.

Please note: even if you have a sympathetic Board, the Board typically may not waive anything within the CC&Rs.

Hard to tell if consulting an attorney would just be an exercise in frustration or not.

The attorney will have better knowledge of local and State statutes. They will also have access, expecting you will provide it, to the written documentation you have (governing documents, communications, etc.). Therefore, at the very least you will be gaining an informed legal opinion.

If your going to seek a legal opinion, I would look for one that specializes in contract/property law.

Hope this helps,

Tim

>Their reasoning for denying me to build was so that they can have access to that area, but from what I can see on my survey there is an access easement and a drainage easement.

If I am understanding you correctly, there are two different easements at issue. It is at least possible that they do not fully understand this.

>I called the county that I live in and they said that there is no issue building a fence on an easement I just have to sign a waiver stating that if they need access to that area and there is a need to remove the fence then I am responsible for that cost.

If this does happen there's a good chance this would cost you more than $300. Would you need to pay for the cost for county workers to remove the fence? And then to replace it?

Bob

This issue came up in my last HOA and also concerning fencing. We checked with the county and utility companies (who the easments were granted to) and we were told that if a fence was built on an easement and they needed access that they could remove the fence and they were not responsible for replacing/rebuilding such. When pressed they said we are not telling you not to build a fence on the easement and there are no restirctions stopping you from doing so. What we are telling you is what we will do if we need access.

Our ARC had to approve all fences and as part of the approval we had some wording concerning that in no way was the HOA responsible and we were told this covered us even if the fence owner had an issue about easements.

I doubt there is any reference to fencing on easements in your CC&R's, or Bylaws. If they are saying no based on it being on an easement, then they really have no right to do so. The issue is between the landowner and who the easement was granted to, not the HOA. My owned lot in my last HOA had several easements on it. One was for an underground drainage pipe running between my house and the next house from the street storm drain to a retention pond behind our houses. Our back yard fences joined and ran on top of the easement.

I expect there are other fences built in your HOA that run over/along easements. Maybe these can serve as an example.

If they are saying your fence will block their access for maintenance, mowing, etc., then they might have an issue for you to address.

I am also assuming the type fencing you want to use and its location (easements aside) meet with their ARC guidelines. If not, all bets are off.

Hope this helps.