A Story About Architectural Covenants….
April 29, 2013
Another recent homeowners association case out of Texas addresses issues surrounding architectural covenants. Bill and Candi Fry own a home in Mineola, Texas, which is part of the Spring Lakes HOA. Bill is a member of the Texas Air National Guard. In early 2010, he was preparing to leave home for training and a tour in Afghanistan. Before leaving, he and Candi wanted to buy their children a playground. Candi allegedly contacted the chair of the association’s architectural control committee and received “verbal” approval to install the playground. The couple then hired a contractor and had the playground constructed.
While construction was underway, an officer of the association approached the couple about the construction. The officer and the architectural control committee then cautioned the Frys that neighbors might complain about the location of the playground on their lot, and if so they might have to move the playground. The Frys were not informed to submit plans. Construction proceeded.
Bill was deployed when construction was nearly done.
Candi then received a letter from the association stating that neighbors had complained that the playground was too close to the property line and that it would have to be moved since it was visible from the street. Candi agreed to move the playground if the association would cover half of the moving costs. The association refused. The Frys were informed they would need to submit drawings of the playground to the association. When the drawings were submitted, the association deemed them insufficient. After several letters from both sides, the Frys sued the association.
These sorts of issues tend to inflame people’s passions. This is understandable as we are talking about property rights. Let’s take out of this the fact that Bill Fry is in the military. That fact is immaterial to the matter.
Last I heard, this matter is still in litigation. Litigation takes time and costs money. But, let’s analyze the issues.
If the architectural control provision is similar to that commonly used in Shelby County (and for the sake of this blog we will assume that it is), then the Frys could not construct the playground without the permission of the association’s architectural control committee. That committee could, and should, have established rules and regulations regarding the application and submission of plans for review. If such rules were in effect, then what should have happened is that the Frys would have obtained a copy of the rules, submitted the proper application and plans for review, and the architectural control committee would have reviewed the submission. At the point, the architectural control committee could have approved or denied the submission in writing. If it denied the submission, it could have denied it with suggestions (i.e., change the location of the playground). If the Frys built the playground without the approval of the architectural control committee, then the association could have enforced the CCRs against them.
But, this is not what happened. We have a claim of “verbal” authority, informal review, and complaints by neighbors, all before the architectural control committee does its job. Then, even though the association has denied the submission, the Frys sue the association. Again, litigation takes time and is expensive. It is the worst possible result in this case. This appears to be an example where good procedures on behalf of the association beforehand would have mitigated this matter spiraling into litigation.
Tags: architectural covenants, association, board of directors, bob dinkelspiel, bylaws, CCRs, Declaration of Covenants Conditions and Restrictions, HOA, homeowner, homeowner association, homeowners, laws, non-profit corporation, setback, Tennessee