How to Get a Court to Back You In a Dispute With a Rogue Condo/HOA Owner

This article first appeared in HOAleader.com. Kelly Richardson, Esq., CCAL, is a regular contributor to help inform community associations. 

A California case, Orangecrest Country Community Ass'n v. Burns, is a feel-good outcome for boards so tired of owners doing what they want instead of what they agreed to abide by when they bought into the community. Here's what happened in the case and its lessons for your community.

HOA and Owner Clash

Orangecrest was the final battle in an ongoing dispute between an HOA that thought it was clear in its denial of an owner's request and an owner who wouldn't take no for an answer.

In late April 2017, the owner, Sandra Burns, sought approval for modifications to her home. By May, the HOA had responded with what the court called a "partial approval" letter. It approved Burns' plans for installation of front yard landscaping, rear yard patio cover, painting, and rain gutters. But that approval was followed by, "with the following conditions: The stucco walls in the front yard have been denied."

In June, the HOA learned that contractors had begun construction on a wall in Burns' front yard. That very day, the HOA contacted Burns by mail, email, and telephone notifying her that she didn't have approval to build the wall and asking her to cease construction immediately. It also sent her a cease-and-desist letter. Within the next month, the HOA had spoken with Burns' contractor, advising the contractor to check with Burns about whether she had approval to build the wall. It also sent Burns notice of an Aug. 10 disciplinary hearing.

Burns later submitted another request for a wall, noting that the request wasn't for a stucco wall, as in the previous request: "no stucco!! Per approval with conditions letter dated 5/9/2017." The HOA responded stating that the wall had never been approved and must be removed.

At trial, where Burns represented herself, she made several arguments. First, she argued the wall had been approved as long as it wasn't stucco. She also claimed three similar walls had been permitted in the community.

The trial court rejected both arguments. It stated that even if Burns believed the wall was permissible if not stucco, she was immediately informed by the HOA that her interpretation was incorrect. The court also found that the three walls that were permitted fit the HOA's setback requirements, while Burns' wall didn't. The appellate court upheld the trial court's findings and granted the HOA's request for a permanent injunction requiring Burns to remove the wall.

Asking for Forgiveness Doesn't Fly

Let's start with a caveat: "This is a nonpublished opinion and, in California, it can't be used as precedent," notes Kelly G. Richardson, CCAL, a partner at Richardson, Ober in Pasadena, Calif., whose firm represents hundreds of HOAs throughout California and who has been a syndicated columnist on HOA issues for 17 years. But the case is still valuable in the lessons it offers to HOAs.

"There's an old saying that it's better to ask for forgiveness rather than permission," he notes. "One of the lessons of this case is that, no, if you build something knowing you don't have permission, courts aren't going to give you any lenience because you've already built it.

"There was another case out of Orange County, a published opinion as I recall, from about 25 years ago, and a lawyer friend worked on it," recalls Richardson. "A homeowner was in a one-story-only HOA and started building a second story. The HOA said that was a violation and asked a court for a restraining order. As the HOA pursued its lawsuit, the homeowner finished the second story and said, 'You're not going to make me tear it down, are you?' The court said yes, it was, and it ordered the owner to dismantle the addition and restore the home to one story.

"I think homeowners who do things like Burns did fall into two groups, and sometimes you can't tell which they're in," he adds. "One group truly doesn't know. They don't realize when they make alterations that they need HOA permission. The other group knows darn well what they're doing, and they're gambling that, once they complete it, the board isn't going to be willing to force them to tear it out or to pursue litigation. They think the board will allow it after the fact. That's a very cynical strategy. If Burns was in that group, her instincts were wrong.

"A big problem is that many board members are mindful that people are neighbors, and they don't want to have to get ugly with their neighbors," notes Richardson. "It's similar to assessment delinquencies. Boards hate to pursue those. But the longer you wait, the worst the situation gets.

"If people indeed didn't know they weren't supposed to put an illuminated giraffe in their yard, the quicker you tell them, the more you help them protect themselves from their mistake," he states. "If you procrastinate, you're allowing the problem to become worse, and that doesn't help anybody."

Having a Strong Defense

Jasmine F. Hale, CCAL, a partner at Berding & Weil based in Walnut Creek, Calif., who advises condos and HOAs throughout California, says there are three more lessons condo/HOA boards can take from Orangecrest: 

• "Document, document, document," she advises. "When this situation arises, the first thing we say to clients is, 'Please send me the documents.' In this case, the association had really good documentation in terms of the communications it had sent to the owner and with respect to the other examples she raised in the case to assert the HOA was acting inconsistently and inequitably. That helped them say, 'Hey, that wasn't approved, and while this one was, here's why it's different.'"

• "The HOA acted promptly," notes Hale. "The day they realized the owner was installing a wall, they called her, emailed her, and sent a cease-and-desist letter saying that wasn't allowed. That sort of shifted the balance of the court's ruling. The court sort of said to Burns, 'Let's take the assumption that your reading of the HOA's denial of the wall is partial—even though we don't agree with it. You were informed multiple times after then that wall wasn't allowed.'
  

  "Speed helped the HOA's case," she adds. "Too many times, associations don't act quickly, and the wall gets built. And the HOA didn't say anything while the wall was being built. Then a year or two later, they say the wall wasn't allowed." 

• "Associations need to be very careful and clear when they're denying things," advises Hale. "I and the judge clearly read that denial as of the wall, not the stucco wall. But the argument does raise the point that the association should be careful and thoughtful in providing denials. Maybe if the HOA had simply denied the front yard wall, it would have avoided this litigation. But probably not with this owner.
  

  "A lot of times over the years, I've seen associations approve something, and when they went back and reread it, there were elements they wouldn't have approved," she recalls. "Boards, you don't get to go back and redo these things. Sometimes, associations are overwhelmed—and this isn't a knock on them—with deadlines and so on. Considering the speed in which this industry is expected to conduct its business, they don't take the necessary time to say, 'What's the most clear way to convey this information?'"

This Isn't a California Outlier

Lest you assume this case is a California judge thing, our experts in other states are here to let you know courts will back you if you've done all the right things in a dispute with owners.

"In Michigan, I'd say that board did the exact right thing," says Todd J. Skowronski, an associate at Makower Abbate Guerra Wegner Vollmer PLLC, whose firm advises nearly 2,000 association clients throughout Michigan. "Stay on top of approvals, be clear when you're making denials, and if the person isn't in compliance, don't watch the violation happen.

"When there's inaction in the face of unapproved construction, owners can say they thought your silence was acquiescence," he adds. "But that's usually an uphill battle to argue when there's express denial and notification that something needs to be stopped.

"Courts here in a case like that would absolutely order removal," adds Skowronski. "We had a situation where an owner installed a massive fountain structure that cost $40,000-$50,000. After extensive litigation, the court ordered it removed. The fountain was on the owner's own property, but the documents said that any improvements in the unit had to be approved in advance in writing. It was a huge, obnoxious foundation.

"We also had an owner install a faux pine tree lamppost—a big, very bright LED light structure," he adds. "The HOA sued and got that thing removed.

"There's also case law in Michigan that didn't involve an HOA but a deed restriction," says Skowronski. "In that case, an owner built a $1.2 million home straddling two lots. The deed restriction said only one home was permitted per lot. The court ordered that owner to tear down the home. The key for boards is to act fast to at least put owners on notice that there's an issue so owners can't say, 'I thought your silence was approval.'"

Times are Different Today

Most courts will back you up if you do all the right things, according to Marshal Granor, CCAL, managing partner at Granor & Granor PC in Horsham, Pa., who is not only a community association lawyer but is also the former owner of a community association management company. That hasn't always been the case in his practice.

"Many years ago, when I was building houses with my family, I was in-house attorney for the company," he recalls. "We built clusters of four townhouses, and each one had a deck off the kitchen with separation walls to give owners a bit of privacy. Without asking the association, one owner decided their baby was going to die if the baby happened to open the kitchen door and fall down the deck steps. So they hired someone to raise the deck 1.5, maybe 2 feet, so it'd be even with the sill of the sliding door."

However, the neighbors next door reportedly enjoyed having breakfast in their sunny kitchen in the buff. "They were appalled their owners could now peer into their home," states Granor.

The HOA ordered the neighbors to put their deck back to its original height. But they said no. So the HOA took them to court.

"On the day of trial, at 2 p.m. on a Friday, the judge looked at all of us and said, 'Is this that stupid deck case? I'll give counsel 15 minutes to go out in the hallway and resolve this. If not, we have some beautiful accommodations at the courthouse, and we'll be happy to host you until I come back on Tuesday,'" Granor recalled.

"Someone asked: 'Did the judge just threaten to throw us in jail if we didn't settle? Can he do that?'" he states. "The answer was: 'I think not, but do you want to find out?'

"Eventually, the owners allowed the association to lower their deck but at the association's expense," reports Granor. "The people next door put their house on the market and sold it three weeks later.

"The court wasn't too keen on the idea of forcing the homeowner to fix the violation," he states. "But I believe there's a better body of law in our state today. Most trial court judges, but not all, understand how associations work.

"And you have to do the right thing," notes Granor. "One of the issues that comes up all the time on the defense side is that there's a house around the corner where this is permitted. Where there's been years of nonenforcement, it's hard to start again."