Legal Question in Real Estate Law in Florida

My wife and I are being told by our HOA that we cannot put up a fence to protect our home from noise coming from our neighbors loud heat pumps. They say they fear that if they allow it (fences have to be approved by the HOA) it will set a precedent that others will use to justify putting up fences wherever they wish. The HOA design code says granting approvals do not set a precedent, but they argue that it would, in fact, set a precedent. We say the noise prevents the quiet enjoyment of our home. If it does set a precedent it is only for our specific situation and the Board would still have the right to stop other fences. Who is right?


Asked on 11/12/10, 7:44 am

1 Answer from Attorneys
Shelly Schellenberg MI & FL private practice

The answer to your question depends on whether or not your neighbor's heat pump noise constitutes a private nuisance. If the noise is really interferring, due to the configuration of the buildings, the location of your doors/windows, or the type of equipment, (old, in need of repair, etc), then you may have a good case for forcing your neighbor to abate the noise. The "uniqueness" of your situation does not create a "precedent".

Since it is your neighbor that is causing the problem, he may have to go to the HOA and convince the HOA that he now has a necessity to abate the noise. A court order to abate the noise will force him to either fix the equipment, or build a box/fence or some other structure to keep his noise out of your space. It sounds as if your HOA is being unreasonable. Sometimes a letter from an attorney, pointing out the rights of the injured party, is enough to get the HOA to focus on its duty to find a solution.

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Answered on 11/18/10, 6:29 am


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