Boca Raton, FL asked in Real Estate Law for Florida

Q: HOA has rejected fence location 2 times, we believe we are being victims of selective enforcement

One neighbor has the first location we requested , and another one has a fence too in the second location we requested, this one is even almost same as us, corner home. The reason they give us is to maintain integrity of the community/ Are they being selective? the covenants don't mention anything about style or location or anything, just says you should send you plan to the ARB and they will decide.

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1 Lawyer Answer

A: Selective enforcement is a defense to being sued, not a cause of action to sue. You might have a case for breach of contract if the HOA is not enforcing the declarations in a uniform manner. You would need to file an action for declaratory relief and have a judge rule if the HOA is right or you are right before proceeding with installing a fence. Since any legal action is expensive and requires pre-suit mediation first, you should try asking the HOA for their fencing guidelines. Most HOAs have Rules and Regulations or ARB Guidelines that owners are unaware exist.

Tim Akpinar agrees with this answer

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