#362-G, MacArthur Park Homeowners Association v. Steinhardt (February 12, 1998) (Panel: Philbin, Glick, Price)

The homeowners association (HOA) complained that the homeowner (HO) had installed a basketball court (hoop and concrete slab) in her yard without permission and requested an order that she remove it.  The HO's defense was that the basketball court was not a "structure" for which approval was required, and that the HOA had tolerated similar improvements made without approval.

The evidence at the hearing showed that the Declaration stated that no "improvement or structure" shall be placed on any lot without advance approval from the HOA.  The Declaration further prohibited the installation of "slabs" or "patios" without advance permission, and banned any "activity" which could become "an annoyance or nuisance to the neighborhood or other members". The HO installed a concrete patio, basketball backboard and hoop next to her townhouse without applying for permission to do so, and the HOA notified her that she was in violation of the rules and must remove the project.  The evidence also showed that the HOA had lax in enforcing its architectural rules and had taken no action against another similar basketball court, which was voluntarily removed by its owner shortly before the HOA filed this complaint.  There was also evidence that some of the HO's immediate neighbors had complained about the noise and appearance of the basketball court.  The HO claimed she had verbal approval from the HOA president for the court.

The hearing panel found that the concrete slab and the basketball hoop/backboard fell within the meaning of "improvements" and "structures" governing by the Declaration.  The panel found that even if the HOA president had given verbal approval – a fact which it doubted – the rules called for written approval, and the HO therefore had no right to rely on oral approval.

The panel then focused on the claim that the HOA's lax enforcement of its rules in the past, and the existence of the other basketball court, meant that the HOA was prevented from enforcing its rule against her.  The panel referred to the case of Kirkley v. Seipelt, 212 Md 127 (1957), and concluded that it was not enough to prove that the HOA had abandoned a rule, "the owner would [also] have to show that he or she relied upon the abandonment of the restriction or that the Association somehow induced the owner to breach the covenant."  It added that "establishing a 'waiver' requires a very clear proof that the scheme of the covenants has essentially been abandoned as a result of the waiver."  Finally, it found that the HO did not in fact rely on the action or inaction of the HOA in deciding to install her basketball court.

The hearing panel also concluded that the decision of the HOA to refuse approval was a reasonable one, because of the nuisance and noise it created.  It noted that this HOA was a community of townhomes, not detached homes, and the resulting close proximity of the homes meant that some activities would be more bothersome than they would have been had the homes been further apart.

The panel denied the HOA's request for attorney's fees on the grounds that it did not provide evidence of the fees and no authority for such fees was found in the governing documents of the HOA.