#323-G, Laytonia Homeowners Association v. Nejad (November 4, 1996) (Panel: Weiss, Huson, Wilson)

The homeowners association (HOA) requested an order that the homeowner (HO) remove a fence that he had installed on the common elements.  The HO's defense was that the fence, and its predecessor fences, had been in that location for at least 11 years and that the HOA no longer had any legal right to make him move it.

The evidence at the hearing showed that the HO had purchased his house in 1985; the HO testified that when he bought the house there was a fence in the backyard, which he replaced in 1987 with a new fence in the same location.  The HO testified he received permission from the HOA for the 1987 fence but neither party could produce any documents to show this.  The HOA took no action concerning the 1987 fence.  In 1995, the HO decided to replace the fence, which had been damaged, and received a permit to do so from the County.  He then installed the new fence.  Shortly thereafter the HOA notified him he needed approval for the 1995 fence, and having received no reply, the HOA sent him a violation notice setting the matter for a hearing with the board.  The HO claimed he did not receive either notice. The HOA sent another notice to the HO reminding him of the board meeting, but the HO did not attend the board meeting, and claimed he did not receive that notice, either.  At that meeting the board found the HO in violation of the rules, but neglected to notify the HO of its decision.  It subsequently filed this complaint to the Commission.  The HOA did not challenge the design of the fence but only its location on the common elements.

The hearing panel first found that the HOA violated its own rules and Section 10B-9 of the Montgomery County Code because it never notified him of his right to appear before the architectural control committee to discuss the alleged violation, nor of his right to correct the violation.  It also failed to notify him of its decision to take action against him and of his right to appeal the decision to the Commission.  The panel noted it could send the dispute back to the HOA for these reasons and force it to follow the proper procedures, but it did not believe the HOA would change its position, and to avoid further delay the panel would proceed to the merits of the dispute

The panel first held that the HO did not have the right to maintain the fence on the common area under the legal principle of "adverse possession."  To qualify under the rule of adverse possession the claimant must show open and exclusive possession of the property in dispute for 20 years and the HO had only owned his house for 11.  In addition, for him to claim adverse possession would be a violation of the governing documents, which prohibited the use of the common elements to benefit just one member.

Nor did the HO have any right under the legal doctrine of estoppel.  The HOA declaration stated that the "failure by the Association...to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."  Moreover, to qualify for the protection of the doctrine of estoppel, the HO must show he was prejudiced by the HOA's inaction.  The panel held he was not prejudiced, because if he did not own the land in question, moving the fence would not deprive him of his right to his own property.

The panel ordered the HOA to have a survey done of the HO's property within 30 days to verify its boundaries, the survey to be done by an independent third-party.  If the survey confirmed that the HO's fence was in the common elements the HO must relocate the fence within 5 months.