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CCOC Decision Summary

#69-06, Decoverly I Homeowners Association v. Kidd and Jens (May 31, 2007) (Panel: Shontz, Gannon, Vergagni)

The homeowners association (HOA) complained that the homeowners (HO) had removed an ornamental balustrade from the front of their home without permission and asked that the HO be ordered to replace it.The HO argued in defense that the balustrade caused leaks into their unit and that the HOA had waived its rights by not taking action against other homeowners who had removed their balustrades.

The evidence at the hearing showed that the HO noticed evidence of roof leaks under the balustrade when they bought their unit, and they caulked around the balustrade; however, the leaks persisted; and when the HO hired a contractor to make repairs in 2002 he said he could not guarantee his work if he had to reinstall the balustrade, which he blamed for causing the leaks.The HO removed the balustrade without applying for permission to do so, although one of the HO's had previously served on the HOA's architectural committee.At some point in 2003, the former manager gave oral permission for removal of the balustrade, but he did not have authority to do so.The HOA and its attorneys sent several violation notices to the HO without effect. In January, 2006, the HO attended a board meeting to discuss the issue but the board refused to allow them to present their case at that time because they had not followed the HOA rules by first asking in writing to do so.The HO then attempted to comply in time for the board's February, 2006 meeting but their letter did not arrive in time and was not considered.This letter asked the board to reconsider its decision and gave reasons why the HO had removed the balustrade.In March, 2006, the board met again and voted to uphold its decisions on the balustrade but the HO was not present at this meeting and not notified in advance that the topic would be raised.In June, 2006, the board again was asked by email to reconsider its decision and further asked to allow the HO to speak on the issue at the July meeting, because they were out of town at the time of the June meeting.However, at the July, 2006 meeting the board refused to allow the HO to present their case and again voted to uphold its decisions that the HO was in violation.The HOA showed that all of the 23 units originally built with balustrades still have them, except for the HO's unit and presented other evidence to show that the balustrades were an important architectural feature of the units.The board had refused to mediate the dispute in spite of a request from the HO to do so.At the end of the hearing the HOA asked for an award of $2600 in attorneys fees and submitted an affidavit of fees and other costs.

The hearing panel ruled that the HO violated the Declaration by failing to obtain permission to remove the balustrade.But the panel also found that the HOA helped to cause the problem by allowing the condition to exist without taking action for almost 2 years, and then when it did take action it violated its rules by refusing to give the HO a hearing on their attempts to appeal its decision.

The panel therefore ordered that the HO make a proper written request for an architectural violation hearing within 30 days, and it ordered the HOA to conduct an appeal hearing pursuant to its rules.The HOA must then submit its decision to the HO and to the Commission's staff within 30 days after its hearing.The panel further ordered that it would retain jurisdiction over the case until after the HOA had submitted its decision, at which time it would consider what kind of final order it would issue.

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