#342-G, Potomac Grove Homeowners Association v. Finizio (April 8, 1997) (Panel: Savage, Burstyn, Price)

The homeowners association (HOA) complained that the homeowner (HO) had installed a fence and repainted her door in the wrong color without approval and requested an order from the Commission that she remove the fence and repaint the door.

The evidence at the hearing showed that the HOA's declaration stated that no changes could be made to a house without prior approval from the HOA, and that the HOA must act on the application "within 60 days after said plans and specifications have been submitted to it", and that if it did not do so the application was deemed approved.  The HOA's architectural guidelines stated that the HOA would act on an application within 30 days from the date of receipt, and notify the applicant of its decision within 60 days of the date of receipt of the application; however, the HOA's architectural chairperson testified that the practice of the HOA was to consider the date of the application as the date of receipt.  In this case the applications for the door and fence were dated April 6 and 7, 1995, respectively; but not received until April 14, 1995.  The HOA acted on them May 26, 1995 and rejected them, but the letter to the HO notifying her of the decision was not sent until June 9, 1995, and not received by the HO until June 14, 1995.  The HO was not present at the May 26 meeting and did not know about it.  In the meantime, on June 8, 1995, the HO went ahead and constructed the fence and repainted the front door.

The panel held that the HOA acted improperly.  The evidence showed that the HOA considered the date of the application to be the date that triggered the running of the 60-day deadline under the Declaration; therefore, the panel held that the 60-day deadline expired by June 6, 1995, and the notice of the rejection was too late.  Therefore, under the Declaration, the application was deemed approved and the HOA exceeded its authority by rejecting it.

The panel dismissed the complaint.