#50-10, South Village Homes Corporation v. Toossi #50-10 (March 22. 2011) (Panel: Burgess, Caudle, Farrar)

The HOA complained that the homeowner was parking a commercial vehicle on his driveway in violation of HOA governing documents prohibiting commercial vehicles.

The homeowner's answer was that he had been parking commercial vehicles on his lot for many years without interference from the HOA so the HOA had waived its rights.  He also denied that the governing documents prohibited such conduct.

The evidence at the hearing showed that the HOA's amended declaration of covenants had been properly filed in the land records and that the homeowner had a copy of it.  The amended covenants clearly prohibited the parking of commercial vehicles in the community and there was no dispute that the vehicle in question was a commercial vehicle.  The homeowner testified he bought the vehicle in question in 2002 and had parked it on his lot ever since then, with limited exceptions.  The HOA testified it was aware of the truck at that time but took no action until 2008, when it sent the homeowner a violation notice.  The dispute went to the HOA board, which decided that the homeowner had to remove the vehicle.  When he did not do so, the HOA filed a complaint with the CCOC.

The hearing panel first found that the amended covenants were properly filed in the land records and clearly regulated the parking of commercial vehicles.  The panel inferred from the fact that the homeowner had a copy of the amended covenants, which he received when he bought the home, that he was on notice of what the covenants contained whether he read them or not.  The panel further found that the rule against commercial vehicles was consistent with the association's right to regulate the overall appearance of the community and not unreasonable.

The hearing panel then held that the HOA could enforce the restriction against commercial parking.  There was no evidence that the HOA had ever indicated to the homeowner that it gave him permission to park a commercial vehicle.  Under the legal principle of estoppel, a delay in enforcement of a legal right does not prevent the subsequent enforcement of that right unless the other party has been prejudiced in some significant way by the delay or relies on the delay to do something he otherwise would not have done.  In this case, the violation began before the board's inaction and not as a result of it.  Moreover, although there was an extended delay in enforcement of the regulation against him, he was not harmed by that delay.  On the contrary, he benefited from the delay in enforcement. 

The panel ordered the homeowner to remove his commercial vehicle from the community.