Covered Porch Violates Restrictive Covenants

 

Todd Bodine purchased a lot in Harris Village in 2006 and received a copy of the declaration. In 2007, he made plans to add a swimming pool and covered deck to his lot, and he provided preliminary sketches to the association as well as a request for architectural approval.  Because no architectural committee had been appointed, the board acted as the committee, pursuant to authorization contained in the bylaws. Subsequently, without notice to Bodine, the board held a meeting and considered his request for the pool and deck.

The day after the board meeting, the concrete was poured for Bodine’s deck. The association contacted Bodine to inform him that there was a problem and advised him to cease construction. However, by then the foundation had already been completed.

At Bodine’s request, a meeting of the board was held that day, and after the meeting, it seemed that the parties had reached an understanding. Minutes of the meeting state that the board approved the cement pad and a 10′ x 14′ detached pool house. Subsequently, Bodine obtained a building permit that included a 10′ x 42′ pool house. He assumed that because the Town of Mooresville permitted the larger structure, the association would approve it also.

The association sent Bodine a letter asserting that he was in violation of the declaration because the construction “appears to be a detached building more than 320 square feet instead of an addition to your home . . .”  At this time, the pool was completed and construction of the covered porch had begun.

Bodine sued the association, seeking a ruling that the declaration did not prohibit him from constructing a 320 sq. ft. porch on his lot. The association filed a motion to dismiss and counterclaim, seeking declaratory and injunctive relief, fines and attorney’s fees.

The court granted a directed verdict in the association’s favor and awarded attorney’s fees totaling $96,000. The court also granted the association’s liens for fines totaling $39,700 and ordered that the covered porch be removed. In addition, the association was granted permission to foreclose on the house in the event Bodine failed to comply with the court’s orders by a specified date. Bodine appealed.

The court considered the central issue to be that the 10′ x 42′ structure on Bodine’s lot was not approved by the association before construction began.

Bodine contended that the trial court erred by denying summary judgment on his original action, requesting that the court declare he was not prohibited from constructing the covered porch on his lot and that the attorney’s fees provision of the declaration did not apply to enforcement of architectural control violations. He also asserted that the trial court erred by directing a verdict against him on grounds that credibility and authorization issues existed regarding the board’s ability to enforce architectural restrictions that were not embodied in the recorded declaration.

The declaration provides that, “no structure shall be erected on any lot without the approval of the committee. . . The committee shall have the absolute and exclusive right to refuse to approve the proposed plans and shall notify the owner within thirty (30) days of receipt of the plans from the owner.”  The declaration also provides that the association may file a lien for assessments, including reasonable attorney’s fees, and may bring suits to enforce its terms.

Sometime after the declaration was recorded, the association members adopted an interpretation and clarification of the HOA existing CCRs. The interpretation provides that, “The maximum size (area) allowed for any accessory building is 320 square feet.”  The interpretation was not recorded in the county land records.

Revisions to the North Carolina Planned Community Act actmade in 2005 established two independent methods for a homeowners association to enforce its declaration:  (1) by mechanisms established in the declaration; or (2) by the provisions contained in the act.

The appeals court’s examination of the declaration revealed that a written certificate of approval is required before a structure can be built or a material modification may be made to any dwelling in the subdivision. Under the legal mechanism established by the declaration, a homeowner must make a request for approval of a new structure or a modification of an old structure and receive a certificate of approval from the appropriate board. Without the certificate, the homeowner may not proceed to erect the structure.

Bodine argued that the disapproval of his request for modification was illegal since the board did not appoint an architectural committee as required in the declaration. Furthermore, he argued that under the bylaws and North Carolina law that the board must appoint other boards, including an adjudication committee to impose fines authorized by the act. He next contended that a section of the declaration, which states that nothing in the declaration shall be construed to be in conflict with the act, prohibited the board from levying the fines imposed by the trial court.

After reviewing the trial record, the appeals court found no facts to indicate that the 10′ x 42′ structure on Bodine’s lot had been approved by an appropriate agency of the association. Furthermore, a jury resolution would not produce the answers to factual questions for which Bodine sought resolution. Lacking any proof, or the possibility that a jury would come to a different conclusion necessary for Bodine to prevail in his action, the court affirmed the trial court’s directed verdict.