#317-G, Seneca Forest Community Association v. Davilla (August 27, 1996) (Panel: Bromberg, Price, Simon)

The homeowners association (HOA) filed a complaint asking that the Commission order the homeowner (HO) to remove a metal shed that did not meet the community standards.

The evidence at the hearing showed that the HO purchased his home in 1986, at which time it already had a metal shed installed under its deck by the previous owner.  In 1994 the HOA notified the HO that the shed was a violation of the rules and told him to remove it.  The HO testified that he was not informed, when he purchased the house, of the existence of any community rules, or that the shed might be a violation of the rules, and the existence of the shed was one of the reasons that he bought the house.  The rules banned the construction of any buildings or sheds without the permission of the HOA.  In 1995, the HOA adopted new rules, which allowed the construction of sheds under certain conditions.  The HOA's records were unclear and incomplete due to a change in management companies during this time.

The hearing panel held that the property was governed by the duly-recorded HOA declaration, and that the existing shed was a violation of the declaration.   The declaration was binding even if the HO was not aware of it: "While it is unfortunate that the Respondent was not given those documents at the time of his purchase, (if that was in fact what occurred), the Commission finds that the failure to deliver the documents to the Respondent has no impact on their running with the land and no impact on the ability of the Complainant to enforce those Declarations as against the Respondent."  The lack of records showing whether the HOA took any previous action did not amount to a waiver of its rights; however, the panel did rule that the 8-year inactivity by the HOA followed by its attempt to enforce the rule "rises to a violation of basic equity principles."

The panel ordered the HO to remove the shed within 45 days, but further ordered that the costs of removal of the old shed, as well as the cost to construct a new shed meeting the new rules must be shared equally by the HO and the HOA, with a cap of $500 on the HOA's share.