#458-G, Tattersall Woods Homeowners Association, Inc., v. Perera (July 13, 2000) (McCabe, Panel Chair)

The homeowners association (HOA) filed a complaint against the homeowner (HO) for constructing a fence and rabbit hutch without prior approval and in violation of the architectural standards of the community, and further asked for attorney's fees pursuant to its rules.  The HO filed responses claiming that the HOA was in violation of its rules by not having a proper architectural committee, by not having board elections, by not enforcing its architectural rules against other homeowners, thereby waiving its right to enforce them against the HO.

The evidence at the hearing showed that the HO had applied for permission to build a fence at his home and the application had been twice rejected; nonetheless he build a split rail fence on both sides of the front of his house; he also built a rabbit hutch and did not apply for approval until after he had built it.  The HOA approved the hutch with certain conditions.  The evidence further showed that although the HOA did not have written standards on fences, it had never approved fences on both sides of the front of a home but consistently limited them to one side of the house, and none can be constructed at the front of the house, except to comply with County laws regarding enclosures of swimming pools.

The hearing evidence also showed that some homes have decorative  or other structures or window treatments that do not comply with the rules; that the HOA has not held regular annual election meetings due to lack of quorums; that some members of the architectural committee serve without being appointed by the board of directors; and that the architectural rules state that a homeowner who constructs an alteration without approval may be required to pay all legal fees incurred to force its removal.

The hearing panel held that the HOA was within its legal discretion to set limits on where the fences can be located even though it has no written policy, so long as it has a reasonable basis (citing Kirkley v. Seipelt, 128 A.2d 430), and the HO's fence violated this rule  The alleged architectural violations at other homes did not involve fence locations, and therefore the HOA had not waived its right to enforce its fence rules.  The panel further held that the lack of annual elections did not invalidate the board's decisions because board members serve until replaced; and the board tacitly ratified the new members of the architectural committee.  The panel recommended that the HOA establish written rules on fences and that it follow its own rule on elections and on appointments of architectural committee members.  Finally, the panel held that the award of attorney's fees was discretionary, and declined to award fees under the facts of this case.

The panel ordered the HO either to remove the rabbit hutch or to comply with the conditions of its approval.  The panel further ordered the HO to remove or to relocate their fence according to the rules within 30 days.