Q: We bought a newly-built house from a builder and paid him extra to grade the back yard to make it flat and construct large retaining walls around the yard to keep it in shape.
We also paid him a substantial amount of money to fence in the whole back yard to keep our young kids away from the drop along the yard and keep them safe. If we could not have fenced in the yard or made it flat, we would not have purchased the home.
We just closed on the home and the city has told us that the fence is too high and violates the law and we have to either tear down the fence or move it several feet from the property line. If we move the fence, our expensive back yard will be substantially reduced in size. Can we sue the builder? What should we do?
A: Unfortunately now that you have moved into the home you are in a difficult situation.
Obviously, you can sue the builder. But you may have a couple of other options. One might be to seek a variation from the zoning board of the city in which you live. This variation, if granted, would permit you to keep the fence in place. If the variation was denied you wouldn’t have lost anything and would be where you are today.
Another option would be to force the builder to place mature evergreen bushes around the yard along with a smaller fence to keep your children safe.
Clearly, this is your builder’s mistake and he should have to pay for it. It was up to your builder to know the building codes and if the fence could not be placed on the property, he should have told you so before you closed on the property.
Before you call the builder, talk to a real estate attorney who has had plenty of experience in construction litigation.
April 16, 2004.