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CCOC Decision Summary

#614-O, John McPherson v. Morningside Homeowners Association (December 22, 2004) (Panel: McCabe, Havlicek, Stein).         

The Homeowner (HO) filed a complaint disputing the right of his homeowner association (HOA) to deny him the ability to construct a deck on his townhome that included a privacy screen.  The HOA decision permitted the deck itself but prohibited the privacy screen.  The HO claimed that the HOA had permitted other screened decks in the community. The HOA responded that the HO was in violation of the rules and owed $12,000 in legal fees to the HOA.

The Commission found that the HOA's Covenants gave it the general power to regulate the external design and location of structures in the community, and that the HOA had adopted architectural rules that stated that patios and decks may not be screened or enclosed.  The panel further found that the as of the time of the hearing, only one other townhome had a screened deck that was approved by the HOA.  The HOA approved that screened deck because the original owner of that unit had moved and the new owner was not given the required disclosure statement and did not know that the screening was in violation of the architectural rules.  In addition that unit faced a parking area which is a source of activity, noise and lights, all of which infringed upon that owner's privacy.

The Commission ruled that the HOA's denial of screening was not unreasonable.  The HOA had the legal authority to regulate the appearance of the community and in particular to preserve its openness and to avoid the disharmonious appearance likely to result from different types of privacy screens.

However, the Commission also denied the HOA's request for attorney's fees.  The HOA's Covenants allow the HOA to assess attorney fees against a homeowner only when the HOA has filed an action to extinguish a violation or enforce its rules.  There was no proof in this case that the HO had ever violated any rule because the HO never installed the prohibited privacy screen.

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