#548-O, Faye v. Amber Ridge at Milestone Community Association (September 20, 2002) (Panel: Stevens, Neel, Weiss)

The homeowner (HO) filed an appeal with the Commission of a decision by his community association's (CA) decision ordering him to remove a brick wall that he had installed along the borders of his property.

The evidence produced at the hearing showed that the CA's Covenants prohibited all fences in the community except those constructed by the developer or the builder.  The Covenants also stated that the CA must act on all architectural applications submitted to it within 60 days, and that if it failed to do so the applicant must give it a written reminder; if the CA then failed to act on the application within an additional 30 days after receiving the reminder, the application was automatically approved.  However, the application form states that the applicant must start work within 180 days after receiving permission for the work.

In this case, the HO's application was rejected for lack of a proper signature.  The HO claimed he resubmitted it, and then when the CA did not act on it within 60 days, he sent the 30-day reminder notice.  However the CA had no record of either document.  The HO did not begin construction of his wall for over a year after the 30-day reminder notice expired.  The wall he built was a brick wall one foot high and he claimed it was "edging" and not a wall.

The hearing panel first concluded that the construction was a "wall" and not mere edging.  It then ruled that, whether or not there was a proper application for the wall, and even if the CA approved the wall by failing to deny it in time, the HO was in violation of the terms of his application because he did not begin work on the wall during the time allowed.  The panel ordered the HO to remove the wall within 60 days.

The CA requested an award of its costs and attorney's fees.  The panel noted that the CA's covenants allowed for an award of attorney's fees if the CA were a prevailing party in an action to enforce the rules.  Here, however, the CA did not file an action to enforce the rules.  On the contrary the HO filed the action appealing the rule.  The panel held that therefore the covenant did not apply and it denied the request for attorney's fees.