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CCOC Decision Summary

#13-09, 1st Aquarius Homes v. Rossiter (April 22, 2010) (Panel: Friedman, Farrar, Whelan)

The homeowners association (HOA) complained that the homeowner had replaced an old picket fence with a new one without permission, and further that its rules prohibited picket fences entirely; it asked the CCOC to order the owner to remove the fence.

The evidence at the hearing showed that the homeowner bought the house in 1999, at which time it already had a picket fence approximately 10 years old.  When she bought it, the HOA provided her an "HOA package", as provided by the Maryland HOA Act, and this package failed to contain any warning that the house and lot had any violation of the HOA's architectural rules.  In 2008, the homeowner applied for permission to remove a large tree that had grown through the picket fence, and of necessity this required removal and replacement of that part of the picket fence.  The HOA approved this application.  In the course of replacing part of the fence the homeowner learned that much of the remaining fence was rotted and the entire fence should be replaced.  She had the entire picket fence removed and replaced with an identical picket fence in the same location.  The HOA's rules banned picket fences and required approval if an owner was making "an exterior addition to or change or alteration" of the property.

The panel overruled the HOA.  The panel held that the HOA was on notice of the existence of the old picket fence and failed to take any action against it. Significantly, the HOA gave the homeowner the HOA package when she bought the house and failed to say that the picket fence was a violation of the HOA rules.  The panel ruled that the HOA abandoned the rule against picket fences as to that particular lot.

The panel also held that the homeowner was not required to obtain permission for the new fence because the rule only required approval for additions or changes, and here the owner was only repairing or replacing an existing fence with one that was identical in all respects.


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