Most every declaration establishing a condominium or planned community contains a list of “use restrictions” governing how the units or lots may be used. These restrictions cover things like architectural and design standards, pets and other animals, parking and storage of motor vehicles, trailers, fences, sheds, nuisances, and standards for home maintenance and landscaping. Some use restrictions are poorly thought out, yet admittedly it would be nearly impossible to draft a set of use restrictions that would cover every conceivable situation that a homeowners association might encounter. However, time and time again we have seen disputes (or even litigation) arise because the language in the use restrictions is vague or ambiguous.
One example is restrictions prohibiting owners from parking or storing “commercial vehicles” in a driveway, on the street, or in a common parking lot. The problem arises where “commercial vehicle” is not defined. The North Carolina General Statutes classify a commercial vehicle based on gross vehicle weight (GVW), but that definition applies only to licensing and other requirements of the Department of Motor Vehicles and other motor vehicle laws. There is no definition of “commercial vehicle” in the North Carolina Condominium or Planned Community Acts, and therefore the statutory DMV definition does not apply to HOAs.
I had a case several years ago where an owner parked a “box truck” in his driveway, which was equipped with a hydraulic lift and “vehicle wrap” signage all around the cargo box. The use restriction prohibited owners from parking commercial vehicles on their lots (except in an enclosed garage), but it did not define what constituted a commercial vehicle. The owner’s attorney claimed that this was not a commercial vehicle since it did not meet the weight requirement (26,000 lbs.) set forth in the statutes that applies to DMV licensing and other issues. While the vehicle might not have been “commercial” for DMV purposes, I imagine any person that you ask would describe this truck as a commercial vehicle.
Another example is language dictating maintenance standards for lots, which was the issue in a case heard by the North Carolina Court of Appeals several years ago:
“At issue in this case is the interpretation and application of the covenant requiring a lot owner to maintain his lot in a ‘clean and sightly’ condition and in a ‘compatible aesthetic appearance with other well-maintained lots.’”
The court found that these standards were ambiguous and susceptible to various conflicting interpretations based on personal preference. There was no objective standard to determine whether a lot complied with these requirements. Therefore, the court ruled that the restriction was void because it was hopelessly vague, and enforcement would be arbitrary.
A 2011 North Carolina Court of Appeals case examined whether two Nigerian Dwarf goats (Fred and Barney) kept as pets by an owner constituted a “nuisance,” which was prohibited by the restrictive covenants. The court noted, “certain property owners in Windrow Estates consider Fred and Barney to be annoying, noxious, and unpleasant; plaintiffs consider them adorable and lovable. The Restrictive Covenants as written do not provide sufficient guidance or definitions to permit the Board, or a court, to make any sort of objective determination of who is right, and this is the essence of vagueness.” The court ruled that because of this vagueness, there were no grounds to determine whether or not Fred and Barney violated the restriction, and the goats were allowed to remain.
Another example is one we see frequently with townhome communities, where the HOA is obligated to maintain certain portions of the lots and building exteriors. Often the list of items that the HOA must maintain is very limited and vague, leaving it unclear whether specific building or landscaping components are the HOA’s or the unit owner’s responsibility. However, the default rule is that unless a declaration specifically assigns a particular maintenance responsibility to the HOA, the unit owner remains responsible for it. Thus, in most townhomes ambiguities mean that the owner is responsible for the maintenance.
The courts have dealt with vague and ambiguous restrictions in two ways: with ambiguous restrictions (i.e., ones that are capable of more than one interpretation) the courts typically adopt the least restrictive interpretation – which favors the homeowner. With vague restrictions – i.e., ones that are hopelessly vague and incapable of any objective standard or measurement (such as “clean and sightly”), the courts have shown a willingness to strike the vague restriction completely.
The solution for these problematic provisions is for the board to propose an amendment to the declaration to clarify the language. Amendments typically require the approval of 67% of the homeowners, though that percentage can be higher or lower depending on what the declaration requires and when the HOA was formed. If you believe that some of your restrictions may fall into the “vague or ambiguous” category, feel free to reach out to one of our KPT community association attorneys for guidance.
Author: Mike Hunter
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.
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