Building In HOA Common Area – MUCH More Costly Than Owner Thought (Because Of Association Attorney Fees)

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The Garrett’s purchased their property in the HOA in 2001.  The CCR’s required an owner to obtain the approval of the architectural control committee (“ACC”) before doing any construction on the property.  The Garrett’s submitted plans to build a pool in their backyard, but the original plans were rejected by the ACC because the plans “were too vague and because professional plans are required for such a large project.”  The Garrett’s then resubmitted professional plans for the pool only which the ACC approved.  When the Garret’s built the pool, the pool equipment was on the common element and they built far more than just a pool.  The Board sent the Garrett’s a cease-and-desist letter, and after an executive session advised the Garrett’s to move the pool equipment within their property and return the common element to its original condition (they had lowered the height of a fence).  Although Mr. [Brett] Garrett attempted to engage a board member in a conversation, the board member advised that “he would not meet with the Garretts … [and that he] would discuss the matter only in the company of the board at a proper meeting.”  In reality, the Garret’s project “had blossomed into a complete backyard renovation with retaining walls, stairs, a drainage system, patio pavers, and planter beds,” none of which were part of the approved plan.

Trial Court Decision

The trial court “issued a mandatory injunction requiring the Garrett’s to remove the pool equipment and pad from the common area within 60 days,” awarded the HOA $820 in compensatory damages, issued a restraining order against Brett Garrett, found the HOA to be the prevailing party and “awarded the Association $318,426 in attorney fees.”

Appellate Decision

The appellate court affirmed the trial court and found that the HOA treated the Garretts fairly and reasonably and ultimately found that the attorney fees awarded were not an abuse of discretion.

Lessons Learned

This case is a great example of many things, including:

  1. If you are part of an HOA or condominium association make sure that you have written ACC and/or Board approval for ALL of the work you intend to do before you enter into any contracts (other than the contract to draw up the plans if needed);
  2. If someone is telling you that you acted wrongly, take some time to reexamine exactly what took place and develop a plan to move forward or to correct any mistakes, before the problem becomes larger and much more expensive;
  3. If you are acting in a manner, or are told you are acting in a manner, that someone or more than one person considers to be “confronting, annoying, challenging and provoking” take some time to re-examine your actions, plan, goals or methods;
  4. If someone in your association is annoying, following the example of the board member is this case is a great idea – advise the owner that you will discuss the matter only in the company of the board at a proper meeting;
  5. If you are involved in a lawsuit, it will most likely get very expensive, that is even more true if you are at risk of having to pay the other side’s attorney fees; and
  6. Something I have written about before, applies here:  If you are headed down the wrong path, no matter how far you have gone, turn around.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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