If a property is advertised and sold as a “secure gated community” but there is no fence, is there any legal paths to take to get this addressed?

An enclosure was promised to be started 23 months ago. The enclosure is not started and the gate is broken.

Asked on July 4, 2012 under Real Estate Law, Arizona

Answers:

Anne Brady / Law Office of Anne Brady

Answered 8 years ago | Contributor

It is difficult to answer this question without more information.  For example, who said the gate would be started 23 months ago?  The developer?  Your HOA?  Who "advertised" the property as "secure gated community?"  Has the developer gone bankrupt?  And most importantly, what solution are you seeking?  Do you want to sell your house back to the developer?  Do you want a judicial order tha he put up the fence and gate?  Either way, this would be a very difficult case for a number of reasons.  You knew when you bought there that the fence was not up yet.  You have lived with no fence for two years now.  You would almost certainly have to prove that you would not have bought your house without that promise that the community would be gated and secure.

Does it say anything in the contract you signed when you purchased your home that there would be a fence and gate?  If so, you could have a claim for breach of contract.  Are several homeowners in the community equally concerned?  If so, and if you have written agreements from the developer saying there would be a fence and gate, and if the developer is still in business, that might be worth pursuing, especially if several of you could share the cost of an attorney.


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