Easement and County Permit

[Mickey13]

Florida

Long story short: We bought a property with a dry easment that runs along the back of the property. Previous HOA Boards would not allow fences to be placed in this easement so we put up a fence that sits inside our property line. Since then new HOA Board has changed their position, another neighbor with same easement put her fence up to her back property line. We now want to move our fence BUT the neighbor that lives behind us still feels the fence can't sit in the easement. Take into consideration this is our private property, we pay taxes on it and must maintain it, it is a legal part of our plat. If we can get a permit from the County (I assume we can as our neighbor did) and the neighbor calls the county to complain, can the County retract the permit citing they issued it in error? This has been a long standing fued between neighborhoods and I am worried the County will try to take back the permit and we will have to move the fence back inside our property line. Am curious if anyone has any insight. Thanks.

 

[HomeGuru]

Florida

Long story short: We bought a property with a dry easment that runs along the back of the property. Previous HOA Boards would not allow fences to be placed in this easement so we put up a fence that sits inside our property line. Since then new HOA Board has changed their position, another neighbor with same easement put her fence up to her back property line. We now want to move our fence BUT the neighbor that lives behind us still feels the fence can't sit in the easement. Take into consideration this is our private property, we pay taxes on it and must maintain it, it is a legal part of our plat. If we can get a permit from the County (I assume we can as our neighbor did) and the neighbor calls the county to complain, can the County retract the permit citing they issued it in error? This has been a long standing fued between neighborhoods and I am worried the County will try to take back the permit and we will have to move the fence back inside our property line. Am curious if anyone has any insight. Thanks.

**A: confusing post. The HOA rules top the county's.

 

[Mickey13]

Sorry, was trying to make it simple. The easement is County, the HOA previously interpreted the easement to mean no fences in the easement. Now, new HOA Board has re-interpreted easement and are approving fences in the easement, their only condition is that the County issues proper permit. My neighbor has recently put her fence in the easement (I am hoping setting precedence with the County). However, given that I know the nieghbor that lives behind me will complain to the County I am concerned the County will try to retract thier issue of the permit and will be forced to move the fence again.

 

[HomeGuru]

Sorry, was trying to make it simple. The easement is County, the HOA previously interpreted the easement to mean no fences in the easement. Now, new HOA Board has re-interpreted easement and are approving fences in the easement, their only condition is that the County issues proper permit. My neighbor has recently put her fence in the easement (I am hoping setting precedence with the County). However, given that I know the nieghbor that lives behind me will complain to the County I am concerned the County will try to retract thier issue of the permit and will be forced to move the fence again.

**A: ok, so what did the county tell you when you voiced your concerns?

 

[Mickey13]

I haven't voiced my concerns with the County. I was going to get the permit assuming that once it was issued the County would have a hard time saying they were wrong in issuing it. I guess my legal question is, once they issue said permit, legally can they retract it?

 

[drewguy]

Sorry, was trying to make it simple. The easement is County, the HOA previously interpreted the easement to mean no fences in the easement. Now, new HOA Board has re-interpreted easement and are approving fences in the easement, their only condition is that the County issues proper permit. My neighbor has recently put her fence in the easement (I am hoping setting precedence with the County). However, given that I know the nieghbor that lives behind me will complain to the County I am concerned the County will try to retract thier issue of the permit and will be forced to move the fence again.

So if the neighbor complains to the county, won't they be in exactly the same position as you would be if you moved your fence? How could they say your fence can't be in the easement but your neighbor's can?

If your neighbor is a real jerk, why don't you complain about their fence to the county and see what happens. If they are forced to move it, then you don't move yours into the easement. If the county says theirs is okay, then you can move your fence too and feel pretty safe.

I don't get how the neighbor can feel they have a right to put a fence in the easement but you do not. But there are lots of weird people who think the rules apply differently to them.

 

[drewguy]

I guess my legal question is, once they issue said permit, legally can they retract it?

Depends. It's usually a lot more difficult and you can argue that you relied on the permit in locating the fence. But some places may still tell you you have a non-conforming fence/structure and require you to remove it.

 

[Mickey13]

Thank you Drewguy. That is exactly what I was asking. I guess what you're saying is that the county could come back later and have us take down the non-conforming fence, I am just trying to figure out my odds. I was hoping with permit in hand, I would have a better chance of fighting the county once they (the county) says it is okay. At that point I am guessing that I get a lawyer involved and they go to the county to argue that they issued the permit and that the fence should stay. We have had all kinds of problems (bums hanging out on our property, people throwing trash back there, we even found an illegal plant someone had planted there) all because it is unfenced portion of our property that we can't control because it currently lies outside the fence (even though the land belongs to us) and it butts up to another neighborhood.

 

[drewguy]

I was hoping with permit in hand, I would have a better chance of fighting the county once they (the county) says it is okay. At that point I am guessing that I get a lawyer involved and they go to the county to argue that they issued the permit and that the fence should stay.

Yes--that is what you would do. There are a host of "equities" that could come into play, but most municipalities like people to think they can rely on the permits they issue. One example where I live (Washington DC)--the permit authority granted a permit, but forgot to check with the national park service, where the property bordered. They were required to do so. Turned out the house couldn't be built there (for arcane reasons), but that wasn't clear until it was about 75% done. The city ended up paying to remove the entire house. In other cases people have been allowed to keep houses/garages/etc. that don't meet various requirements (e.g., setback, height, total footprint). There often is an expensive fight, but if you do it in good faith then you tend to come out okay. But that's here, and Florida could be different, but I would think similar principles apply.

 

[154NH773]

Your state or local ordinances may differ, but in my state a permit to build (including a fence) is not safe during the appeal period. In other words, if you get a permit, there is a period during which it may be appealed, and after an appeal is entered, the permit is suspended until the appeal is resolved. The appeal period may not begin until you post the building permt where your neighbor can "discover" it (where they can see it).

So, if you get a permit, post it immediately and then don't actually erect the fence until the appeal period is over, (in my case it would be 30 days).

A municipality can revoke a permit that was not issued legally, but if you have spent any amount of money relying on their issuance of the permit you could fight them on the basis of estoppel (see drewguy's post above), although there is no guarentee that you would win.

 

[Mickey13]

Wow, had not thought of that. Thank you all for your insight. It looks like I may have a fight on my hands. Is there any legal juice to the argument that the easement is depriving me of full use of my land? Or the legal argument that if the neighbor behind me erects a fence and my fence is sitting inside my property line that we have now created an alley and therefore are creating a danger? I guess I bought a property with a long McCoy/Hatfield battle going on in my backyard and I want my land for my use not the people who live in the next neighborhood over.

 

[drewguy]

Wow, had not thought of that. Thank you all for your insight. It looks like I may have a fight on my hands. Is there any legal juice to the argument that the easement is depriving me of full use of my land? Or the legal argument that if the neighbor behind me erects a fence and my fence is sitting inside my property line that we have now created an alley and therefore are creating a danger? I guess I bought a property with a long McCoy/Hatfield battle going on in my backyard and I want my land for my use not the people who live in the next neighborhood over.

No, an easement's purpose is to subject your land to certain limitations so that other people may use them. Any restriction placed on use by the HOA is an HOA issue and something you implicitly agreed to by buying subject to teh HoA agreement.