#268-O, Rapport v. North Lake Woods Homeowners Association, Inc. (September 21, 1995) (Panel: Alper, Fox, Gick)

The homeowner (HO) complained that his homeowner association (HOA) improperly refused to "grandfather" his existing metal storage shed when it adopted new rules on sheds and that its enforcement policy was inconsistent and arbitrary.

The facts at the hearing showed that the HOA's Declaration prohibited the construction of all sheds without prior approval of the HOA, and that the HO had constructed a metal storage shed under his deck without applying for permission.  He then applied for permission to build a shed similar to his neighbor's metal shed, which the HOA rejected on the grounds that all sheds must be of wood, and cannot be higher than the fence around the house.  The HOA asked the HO to remove the shed.  After the shed was constructed but before the HOA demanded its removal, the HOA adopted architectural guidelines regulating sheds, and specifying that they must be constructed of wood and not be higher than 6 feet.  The HOA also demanded that the HO's neighbor, who had an older metal shed, remove it, and the neighbor did so.  The HO alleged that there were 3 other metal sheds in the community.  One of these was later removed at the insistence of the HOA; the other 2 sheds had been constructed while the community was still controlled by the developer, and the HOA decided to let those 2 sheds remain.  The HOA itself never approved metal sheds.

The hearing panel ruled that the HOA acted reasonably both in setting standards for wooden sheds and in refusing to "grandfather" an exception for the HO's metal shed.  The HO knew he needed approval to build new structures, and he did not comply when the shed was involved.  The fact that the Declaration did not contain specific standards for sheds also did not entitle the HO to be "grandfathered" because the Declaration's general standards of harmony and safety were sufficient to allow the HOA to decide on applications for architectural changes.  Based on the Declaration alone the HOA is entitled to make architectural decisions on a case-by-case basis, so long as the decisions are made in good faith and are not arbitrary.

The hearing panel further ruled that the facts of the dispute show that the HOA did act consistently against metal sheds when it could; and its decisions to allow two of the oldest metal sheds were reasonable given the circumstances under which they were constructed and the fact that both of them were smaller than the HO's shed.  Furthermore, the HOA Declarations state that the failure to take action to enforce a covenant shall not be deemed a waiver of the rules.

The panel ordered the HO to remove his shed within 30 days.