By RVAR Counsel David Bullington

In a recent local case, a homeowner’s association lost its attempt to compel a lot owner to remove a hot tub and fence which it said were built without necessary approvals from the association’s review board.  According to Judge Dorsey’s opinion in Parkway Place Homeowners Association v. Hovis, the homeowner’s hot tub and fence can stay. 

The homeowners purchased a lot in Parkway Place subdivision, which was subject to restrictive covenants creating a homeowner’s association and by-laws requiring approval of fences and other exterior changes by an architectural review board .  Prior to purchasing the lot, the homeowners spoke to the adjoining property owner, who was a member of the review board, and were told that approval of a hot tub and fence would be required by the review board.  However, after purchasing the property, the homeowners were told by the developer that he could approve the hot tub and fence without review board approval, and he did so by writing on a survey the terms of the proposed construction with the note “approved as part of construction of home.”  After obtaining the developer’s approval, the homeowners also went to the association board of directors, and received an e-mail stating that “everything is fine with the board” on the hot tub and fence. 

After construction, the association brought suit against the homeowners on the grounds that review board approval had not been obtained as required.  The association sought an order compelling removal of the fence and hot tub.  The declaration and by-laws clearly prohibited any changes to the exterior structure or other portion of the lot without first obtaining approval of the review board.  However, the declaration also contained an exception reserving to the developer the right to make architectural and other changes to a lot which the developer “owned.” The issue in dispute was whether under those provisions the developer could make changes to a lot after he had sold it, as was done in this case, or only while he owned it.   

The Court found that the provision was ambiguous and ruled against the association, reciting the general rule that declarations and by-laws “are to be construed most strictly against the Grantor and persons seeking to enforce them, and substantial doubt or ambiguity is to be resolved in favor of the free use of property and against restrictions.”  The Court also stated that the board was barred from bringing the action under a doctrine known as equitable estoppel because of the e-mail to the homeowners stating that “everything was fine” with the hot tub and fence.

This case illustrates the general tendency of courts to carefully scrutinize attempts by homeowners associations to limit a homeowner’s use of property under restrictions.  This is particularly true where a forfeiture would result from removing existing improvements. While the plain language of a declaration will usually be upheld, any ambiguity will typically be construed in favor of the homeowner and against the association.  Also, it demonstrates that courts can and will apply additional doctrines to aid a homeowner who reasonably relies on statements or actions of an association.