Neighbor's fence doesn't make a good situation


November 04, 2001

Dear Mr. Azrael,

Our neighbor's home is situated so that its rear yard aligns with one side of our front yard.

Last week our neighbor contracted a fence company to build a picket fence to enclose his rear yard and run along the sidewalk of the property. The fence is built on the property lines bordering our property and the community sidewalk.

As a result, the rear yard fencing creates front yard fencing for our yard from the front line of the house to the sidewalk.

Also, our neighbors, without our consent, are using about 15 feet of our fence to enclose their rear yard instead of erecting a fence next to it.

As a result, we are now unable to maintain the 10 inches of our land because it is now fenced in.

According to the covenants of our community: "Front yard fencing is not allowed." Also, it says, "Approval of fences bordering on open space is contingent upon heavy screening with plantings. In addition, the fence must be located at least 5 feet from the property line ... and be of split-rail design."

Our community does not have an association to assist in enforcing these covenants.

We have been in contact with the development corporation that created the covenants for our community. The development corporation, until 1994 when the community was able to elect lot owners as representatives, was the Architectural Control Committee that enforced the community covenants.

According to the development corporation, the fence does not abide by the covenants, and the covenants are to be in effect until the year 2012 despite the lack of a community association.

Before confronting our neighbors, we would like to know what our options are. If you could, would you please advise us as to our legal rights?

David and Beth Long


Dear Mr. and Mrs. Long,

Your neighbor's fence appears to have been built in violation of the restrictive covenants. The fence is erected within 5 feet of the property line. It is not heavily screened by plantings, and it's not of a split-rail design. All of these requirements are established by the restrictive covenant you quoted.

Each lot owner in the subdivision has legal standing to enforce the restrictive covenants. Consequently, you have the option of filing a court action to seek a judicial order requiring your neighbor to remove the nonconforming fences or to re-install them in accordance with the restrictions. Since no homeowners' association exists, it's up to the lot owners to enforce the restrictions.

A court probably would issue an injunction against your neighbor, unless your neighbor can show that other lot owners have violated the covenants by erecting similar nonconforming fences.

Another option, less costly than filing a lawsuit, is to advise your neighbor that the fences clearly violate the restrictions, and insist that they relocate the fences and screen them as required by the protective covenants.

The next step is for you to consult a lawyer to review the restrictive covenants. Do they provide for recovery of attorney's fees? If not, you may have to bear the legal fees and expenses yourself. The attorney also may visit your community to observe if other lot owners have violated the restrictions.

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