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Real estate Q&A: A gated community without all the gates? Speak with developer about completing the job [Sun Sentinel :: BC-REAL-REALESTATE-QA:FL]

Q: We recently purchased our home in a new gated community that is still under construction. We just learned that the developer is only gating for cars, not the sidewalks. We are concerned pedestrians and solicitors can freely enter our community, defeating the security of being in a gated community. Can we make the developer fix this? - Michael

A: With the increase of planned developments, more communities are opting to be gated. Most new communities are advertised and sold this way. While some experts claim that gates make communities safer, others disagree. There are few scientific studies to back up either point of view.

Supporters argue that restricting access into a neighborhood will make it safer, while detractors call it "security theater" that gives the illusion of being safer and causes residents to let their guards down and fail to take common sense measures to secure their homes.

Regardless, many people want to live in gated communities, yourself included.

To determine the developer's responsibility, you will need to review your sales contract and community governing documents. The documents should explicitly set forth what the developer is supposed to install. However, I would not get your hopes up too high because in my experience your builder will have a lot of wiggle room. The law does not provide a precise definition of what a gated community is because each development is unique. Instead, the law provides that each party to a contract - meaning you and the developer - must live up to their promises.

If this is something that is important to you and your neighbors, I suggest that you speak to your developer. If enough of the residents demand this feature, it is likely that the pedestrian gates will happen. If not, once most of the homes are sold, your developer will turn over the community association to be managed by the homeowners. Your community will be free to make any changes you want, provided you and your neighbors are willing to pay for them.

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ABOUT THE WRITER

Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.

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