Precedent

Our HOA recently took 2 home owners to court for violations of the CC&R, they each had a structure that was not approved.

The first suit was settled by allowing the structure to remain once it was painted to match the house. This structure was in clear violation of the covenants because it was located in front of the fence but the board's issue was the structure itself. The wanted it removed from the property.

The covenants do not have any provisions to levy fines or to place liens except for failure to pay HOA dues.

The second suit was for a playhouse. What they are terming a structure. The ARC's policy is that play structures are not Covenant Enforced(and there are many that had existed when this one was put in and new ones added since which have had no approval or conflict).

Not all board members agree but a few who hold the power are trying to continue the second suit. Did the board not already set precendent by allowing the first structure to remain when settling the first suit? The details of the suit where sealed making it hard to know what the exact terms were but it is clear that the structure still exists and the lawsuit is settled.

Does the second suit have a chance when it is a playhouse with monkey bars and a slide and the board clearly states that they do not enforce play structures. There are many such examples that exist (stand alone playhouses, and swingsets, and combo structures)and yet they are only trying to bring action on one homeowner because a neighbor complained. And so they feel they must take action. Many homeowners would like to see this suit dropped to avoid expenses that may not be recouped.

Has the HOA lost the right to scrutinize one play structure vs another when they do not generally take actions on play structures?

Did they set themselves up to fail by allowing the first suit to be settled and that stucture still remaining?

Are there any precents in the courts? This HOA is in GA.

What should be used to reason with the ACC?

Nicole

We need more info on the "structures" especially about the one in front of the house that just needed "painting".

Me thinks you are trying to lump apples and oranges together.

I could be wrong, and it will be neither the first nor last time.

Nicole,

You might want to check your documents carefully. There may be no such thing as "precedent."

Many governing documents (covenants), like many contracts, often contain a clause that states something like the failure of one party to enforce a provision of the covenant (contract) against another party should not be construed to mean that the party has waived its right to enforce that provision against the same, or another, party in the future. In other words, failure to enforce a provision does not establish a precedent.

There is no such clause or guideline in our Covenants. And the play house is not visible from the road as it is behind a 6 foot fence on a several acre lot.

Is there a statute that says any structure that is not seen from the road is not subject to covenants?

I am of the opinion your HOA does NOT have a case and is pursuing lawsuits unnecessarily. It's not for what you may be thinking. The HOA has it's own powers to remove an item without going to court. Going to court is an illustration your HOA doesn't fully understand what it is doing. CC&R violations enforcement is done in-house with certain legal options.

A HOA typically (Won't say all) has the power to remove a violation and send the owner the bill for it. IF the owner does not pay that bill, then the HOA can LIEN for it. That is the process the HOA has the power to do. It's debateable amongst many here who insist on "Trespassing laws". However, if the violation is on COMMON property then those laws may not apply. That is because the HOA owns the property and can maintain it's own property the way it feels fit. Removing items or enforcing rules of maintenance/appearances is allowed.

Now having said the HOA can remove an item and send the owner the bill does show the HOA incurred financial damages. It is those financial damages that a HOA could indeed pursue in court if they don't do a lien. Which is why your HOA may not be pursuing this lawsuit correctly. The court needs to see damages and make one whole. The HOA hasn't paid anyone money to remove the item so they are not out of money except for the legal mess. Which they brought upon themselves and most likely won't count as damages by the court. The HOA should be suing for the right to enter the property and remove the violation. They need to show an estimate of the cost for removal of the item if they go in and are able to remove. That then will be the reward of the court. If that is not paid then a lien can be pursued for it.

I don't think the owner is in violation and the HOA should have responded that it was okay. Instead of a knee jerk reaction that because someone complains it should be removed and sued for it. The HOA can stand behind it's rules just as much. The HOA should have written a letter showing in the rules the playground equipment is NOT in violation and is okay to have installed to the person who complained. That is what I would have done.

The board can exceed the reach of the ACC. I would recommend going to a BOD meeting and addressing the issue as it is their right. The BOD has the power to overturn. What money are they even using for the lawsuit? The BOD would have to approve this expenditure. Which comes from the owner's dues.

A play house can be subjective. Some sheds do have windows in them. At this point, I would hope the owner of it has decided to countersue. That would be their best option at this point if they continue to pursue this case. It is cheaper for them to counter sue and doesn't necessarily need an attorney to do so. They can counter sue for any expenses they may have incurred legal, maintenance, or other just to have something to countersue for. This would end the whole thing right there once it is finished in court. I'd put the ball in the owner of the shed's hands now and finish this off.

It sounds more to me that the current Board is attempting to enforce the CC&R's which past Boards or ACC have ignored. By the section you posted a playhouse is indeed a building and by the inclusion of tree house it shows that the section was not designed to exempt structures meant for children.

Nicole,

Not necessarily. If you've heard this from someone it is most likely opinion and not fact. Courts set precedence, Homeowners Associations do not. You would need to cite actual court decisions where it was determined that an association has abandoned a covenant provision because it has not enforced it in the past.

As Glen pointed out, that's why the "waiver" clause is in the covenants (and contracts). By virtue of that clause, all parties agree that other provisions are not considered "abandoned" simply because they haven't been enforced in the past. In other words, such an argument would not likely hold up in court.

The homeowner has been shut-out of speaking at the Board meeting. They were told that they could attend any meeting which is difficult to find (at unspeficied place at unspecified time) but that they would not be able to discuss their specific ACC issue.

Yes and at what cost.

Sometimes hiring your own lawyer is the best option, especially if the person threatening you with a lawsuit is on shaky ground, even if it is a another lawyer. Lawyers first attempt to win their objectives for their clients through threats and intimidation (legal bullying). I've always believed this and my beliefs were confirmed by an attorney friend of mine. Sometimes all it takes is a letter by your own lawyer (it usually will cost a few hundred dollars) to make the problem go away. Personal experience. You need to hire a lawyer who specializes in the area of law that applies to your situation. If your case is not winnable, a good lawyer will so advise you during initial consultation.