#426-G, Kensington Crossing Homeowners Association v. Case (April 28, 1999) (Philbin, Murphy, Wilson)

The homeowners association (HOA) filed a complaint to require the homeowner (HO) to reduce the size of a deck that he had constructed without permission.  The HO claimed that the builder-developer had approved the deck before the association was transferred to the homeowners.

The evidence showed that the Declaration of the HOA required all homeowners to obtain written approval from the HOA board of directors or from a 3-member architectural committee appointed by the board for any alterations to their homes.  The HO testified that he had received oral permission from the builder, who was also the president of the HOA while it was controlled by the builder, for the deck.  However, the builder, who testified, and other witnesses, said that he had only given permission to the HO to submit written plans for the deck, and not for the deck itself., and that neither the HOA nor the builder had approved any plans for the deck.  After construction of the deck began, the HOA notified the HO that he needed written approval.  The HO submitted plans, and they were denied by an architectural committee of 1 person, although the HOA rules required a committee of 3.  The reason for the denial was that the deck was too large.  The HOA president testified that no architectural committee of 3 members was ever established by the board, and that the board ruled on architectural issues itself, and that the denial by the committee member was merely a recommendation to the board which the board could accept or reject.  The HO ignored the HOA decision and completed construction of the deck.

The hearing panel concluded that the HO never obtained permission from either the builder-controlled board or the homeowner-controlled board for his deck.  It further concluded that the HOA had acted in a reasonable manner to set size limitations for decks in order to preserve a harmonious appearance in the community.  The panel also concluded that although the letter of denial for the deck may have given the appearance it was from the architectural committee, it fact it represented a decision of the board, which had the authority under the Declaration to make architectural decisions, and therefore, the decision was proper under the HOA rules.  The panel ordered the HO to submit new plans showing how he would modify the deck to comply with the size rules, and to modify the deck according to the terms of the approval within 30 days.  If the HO could not obtain any approval for his proposed modifications, he must remove the deck.