Legal Question in Real Estate Law in Virginia
real estate set backs
The covenant in our home owners association has a clause that states that the owner/developer reserves the right and imposes set backs on all of the lots in our neighborhood as needed for utilities and maintainance of these utilities. In question in particular is that it requires 30ft from the road along the front of the property and states that no structure be placed in this area. I have noticed that there are several houses in the neighborhood that do have stuctures well within that 30ft zone such as driveway piers built out of block and brick and also a fence. I have plans to errect a fence myself and it would be in the 30ft area also. It also will be of a material that is easily removable if nessecary to work inside of or around (split rail cedar). ''MY'' question is, what repercussions will I face for doing this? Does this mean that I could be sued? Do I have to just move the fence if and when the utiliy company needs access? How can other people put fences and piers at the end of their driveways well within the 30ft? What are their liabilities? I would like to know what can happen to me if I do put the fence within the set back area. Thanks.........
1 Answer from Attorneys
Re: real estate set backs
The other owners can continue to violate the covenants as long as the HOA tolerates it. The same would apply to you.
If you were to erect the fence you've proposed
within the proscribed area, and the HOA decided it wanted to enforce the covenant, all that would likely occur is that the HOA would send you notice to remove it. Only if you refused their directive, would the HOA then begin to consider suing you and, possibly, the other violators. You, then, if you decided to contest it, would then need to engage the services of counsel to begin preparing the grounds for your defense in court which, among other things, likely would include the assertion that by its previous course of conduct in tolerating the violations, the HOA had effectively waived the enforceability of this particular covenant.
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