#453-G, Inverness Forest Association v. Notter (October 25, 2000) (Philbin, Perkins, Skobel)

The homeowner (HO) replaced four of the original windows in her home with double-hung window sets, without first having obtained the approval of her homeowners association (HOA).  The HOA filed a complaint seeking the removal of those windows.

The evidence at the hearing showed that the HOA's governing documents required that all changes to the exterior of the home have the prior approval of the HOA; that the double-hung windows were installed without approval; that after they were installed the HO requested approval, and the HOA denied it because the windows were not the correct style for that house.  The HO testified that many other homes in the community had similar windows, but she produced evidence of only one home that did not comply; and that she needed them as a safety feature because she had children.  Her expert, a home inspector, agreed with her safety concerns and said he thought that the original windows could not be replaced with similar ones under the County Code; however, a county building inspector testified that the county would not be involved in window replacement. The HOA produced evidence tending to show that double-hung windows did not conform to the architectural style of the community, and that the By-laws provided that if the HOA took action to enforce the rules it had the right to recover attorney's fees.

The hearing panel held that the decision of the HOA to refuse approval of double-hung windows was reasonable and consistent with the overall design of the community. It further held that the existence of one other noncomplying home did not show that the community was inconsistent in applying its rule, the more so because there was no evidence that the HOA had approved or tolerated it.

As to the attorney's fees, the panel agreed to award the fees because they were required by the governing documents, but determined that the amount of fees requested was not reasonable, and it reduced the fee request from $3353 to $1000.  The panel ordered the HO to replace her new windows with proper ones within 3 months and to pay the attorneys fees of $1000.