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CCOC Decision Summary

#733-O, Vartan v. Oak Springs Townhouse Association (September 21, 2005) (Panel: Pettey, Negro, Oxendine)

The homeowner (HO) appealed a decision of her homeowner association (HOA) that required her to remove the privacy screening that she installed on her deck.

Prior to the formal hearing on this dispute, the Commission offered to arrange an informal mediation session between the parties.The HO accepted the offer but the HOA refused on the grounds it would be unproductive.

The evidence at the hearing showed that the HO applied for permission to build a new deck with privacy screening, and that the HOA rejected the application because the proposed screening violated the community's architectural rules.Nonetheless, the HO designed a new deck, obtained County permission to construct it according to County building codes, and proceeded to build it without applying for permission from the HOA.As designed and built, the new deck included 6-foot tall privacy screens on each side of the deck.The HO argued that the HOA had permitted privacy screens on other homes and therefore its action against her was unreasonable, and that it had allowed the rule to lapse.

The HOA's evidence was to the effect that the "privacy screens" installed by the HO were actually solid wood walls (board-on-board fencing) and inconsistent with the HOA's rules for decks.Most of the other homes used as examples by the HO were not in fact homes belonging to the community,and in the one home that did belong to the HOA, the privacy screen was different, much smaller, and located on only one part of the deck.The HOA routinely surveys each home in the community for architectural violations and routinely takes action to enforce its rules.

At the close of the hearing the HOA requested $4939 in attorney fees on the grounds that the HO's complaint was frivolous and without justification.

The hearing panel found that the HO violated the rules by constructing her deck without permission, and by installing privacy screens that were prohibited by the HOA rules.It further held that the HO produced no evidence to support her case that the HOA had waived the rule, because the HO could only show that one other home in the community had a privacy screen, and the screen on the deck at that home was markedly different, being much smaller and being a lattice instead of solid wood.Further, even assuming that the other homes cited by the HO were in fact located in the community, none of them was similar to the walls erected by the HO.Therefore, the panel ordered the HO to remove her screens.

On the motion for attorney's fees, the panel found that they were justified under Section 10B-13(d) because the complaint was frivolous or not maintained in good faith, the HO having failed to present any substantive evidence in support of her complaint.

However, the panel reduced the fee award on the ground that the HOA had also violated Section 10B-13(d) by unreasonably rejecting the offer of mediation.The panel reasoned that although mediation would probably not have been successful in reaching a compromise, "mediation may have been effective in convincing Complainant that she should not proceed further with the complaint, thereby reducing the attorney's fees . . . .and further, the Panel believes that mediation should be encouraged as a means to resolve disputes and reduce the effects of attorney's fees."As a result, the panel reduced the award of attorney's fees to $1500.

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