#53-13, Koppel v. College Square Condominium (May 29, 2013) (Panel: Shontz, Fishbein, Winegar)

Homeowner claimed that the condo attempted to rescind approval of the homeowner’s deck after he had completed construction according to the approved plans, and that the condo then attempted to force a modification of homeowner’s deck at the Association’s expense but without his consent.

Based on a 1997 opinion of the condo’s legal counsel, the condo learned that several approved decks in the community extended beyond the boundaries of the unit owners’ exclusive ownership area and into common or limited common elements, in violation of Section 11-108(a) of the Condominium Act.

As a result, in 2004, the condo adopted a policy of requiring those existing non-complying but approved decks to be modified at the time the house was to be sold. The encroaching portion of each nonconforming deck had a temporary easement until the time of resale.  There were approximately 28 such decks.

In this case the homeowner filed for and obtained the condo’s approval for a deck which, unknown to the parties, encroached on the common areas.  He built the deck according to the approved plans. Shortly after he completed the work, the association discovered that the property’s deck extended into the common areas in a way similar to the other noncomplying decks, and it then informed the homeowner that the deck was non-compliant and that he would be required to bring the deck into compliance at his expense.  No evidence was presented by the condo that the homeowner intended to encroach beyond the lot boundary. The condo’s board subsequently changed its position and stated its willingness to pay the cost to bring the property owner’s deck into compliance, but he refused to allow any changes.

The condo argued that it was not bound by its approval of the deck because neither the  Board nor the Architectural Review Committee had the legal authority to approve the deck’s encroachment into the common areas.

The panel noted that in a previous decision, Milne v. Crawford Farms Townhouse Association, Case Number 151-0 (1994), a CCOC hearing panel had concluded that the association was prevented from enforcing a covenant after the resident had properly applied and received approval for a fence from the association.

The panel hearing this matter similarly concluded that the condo cannot enforce the property boundary after giving its approval and allowing construction to proceed to completion or near completion. This result would cause substantial economic harm to the homeowner.  At the same time, there was no substantial harm to the condo, nor would it open the door to other unit owners to build nonconforming decks in the future. Failure of an association to enforce a restriction or covenant once does not prevent the association form enforcing that restriction or covenant in the future.

The condo would be permitted, however, to enforce against the property owner’s unit the 2004 policy of requiring modification of the owner’s deck at the time of sale, but it must do so in this case at its own cost.

Finally, the panel noted that the condo was unwilling to participate in mediation .  It encouraged the condo to better track the process of modification requests, improve communication with residents, endeavor to apply modification decisions with greater consistency in keeping with close adherence to the bylaws and architectural guidelines, and consider adopting a redundant process for contacting residents to ensure that mail sent is actually received and understood.

The panel encouraged residents of the condo to familiarize themselves with the community’s policies and procedures with respect to the processing of applications for property modifications, the use of, and encroachment on, common areas and appealing adverse decisions.

The Panel ordered the condo association to notify the property owner in writing that his deck does not need to be modified, except in accordance with the 2004 policy applicable to non-conforming decks. The condo was also required at its Board’s next meeting to review the procedures of the Architectural Review Committee and its procedures for resolving complaints and disputes, and to give ample written notice to all residents that this issue will be on the agenda and community input will be sought.

[NOTE: see companion decision, #73-13, Abdelkarim v. College Square Condominium.]