Don’t Selectively Enforce Restrictions
From time to time, a homeowner in the community you manage will want to install—or will install without permission—some item that isn’t allowable under the association’s declaration of restrictions. While this seems cut and dried because governing documents set out what can and can’t be done, it’s possible that things can get more complicated if other homeowners have been allowed leeway in the past.
The fact that an association hasn’t cracked down on unapproved structures being built by other homeowners could negatively affect the outcome of any litigation over new structures. Selectively enforcing rules is always problematic for boards of community associations. Issues can run the gamut from being unable to force an owner to remove a structure, to a discrimination claim that can seriously affect the community’s reputation and bottom line. But in some cases, it means that a court will allow a homeowner who fails to get approval for some item to keep it.
A Kentucky association recently learned this the hard way. In that case, a married couple who were homeowners in the community built a wooden storage shed in their backyard. The homeowners asked their neighbors for permission and got a building permit from the city. But they failed to ask the association in writing, which was a requirement under the governing documents. When the association learned about the shed, it demanded that the homeowners remove it for being in violation of the restrictions and for not seeking permission to build it. The homeowners refused, so the association sued them. The homeowners asked a trial court to rule in their favor without a trial. The trial court determined that the homeowners could keep the shed. The association appealed the decision.
A Kentucky appeals court upheld the decision of the lower court. The appeals court stated that it was “extremely sympathetic to both positions in the case” but held that “because of the numerous other structures visible from the common area, the Homeowners Association’s issues with this individual structure seem arbitrary.”
The appeals court concluded that given there were numerous structures visible from the common area on other subdivision lots, the shed was not “so out of place in material or color such as to change the tone of the neighborhood that the subdivision restrictions were intended to protect.”
The association later filed a motion to alter the decision, to add language to the court’s order that would limit it to this particular case only to protect the association’s future authority to exercise its building approval rights under the subdivision restrictions. The appeals court granted the request and that ‘the shed which is the subject of this lawsuit…shall not be used in the future by any homeowner of the association as the basis for failing to seek approval prior to the building of a structure for which approval is required by the Declaration of Restrictions.”
Although, ultimately, the association was able to prevent future homeowners from violating the restrictions by building an unapproved structure, it could’ve avoided litigation altogether if it had enforced the restrictions uniformly for all homeowners [English Station Community Association v. Gaddie, March 2018].