Q: Asking about an issue with my Home Owners Association.
I replaced my privacy fence a couple years ago with a type of fence that was perfectly acceptable at that time. Recently they changed the types of fences that were allowed and sent me a notice that I had to replace my fence with a new type within 30 days. I let them know a few months ago that I would take care of it by the end of the year when I could afford to, which they seemed okay with. Now they are trying to force me with a lawsuit to replace my fence immediately. Can they even do this seeing the fence I put up was perfectly within HOA regulations at that time?
A:
Did you get written approval to install the fence? Does the HOA documents require written approval for fences? Sometimes they rely on language which states you need permission for any exterior modification. Depending on how it is worded, some courts will find the language is too broad and vague, but that is an expensive issue to litigate. If you are already being sued, meaning the lawsuit has been filed, you need an attorney immediately and one experienced in HOA law. You have twenty days from the date of service to file answers and affirmative defenses, which one of your affirmative defenses may be the statute of limitations for specific performance has run. You might also have an argument they are trying to retroactively apply a restriction. You should have also received an offer of pre-suit mediation first and it is important to participate in that not only because it's your only chance to have a say in the outcome before a judge decides, but because you cannot get attorneys' fees if you win and did not go to mediation.
Contact an attorney as soon as possible.
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