September 26, 2005
Ohio Appeals Court: Siding Violates Condo Restrictions, Reverses Trial Court Ruling
Connolly Constr. Co. v. Yoder, 2005-Ohio-4624
Shortly after they purchased their lot, the Yoders submitted their building plans for approval to the Committee. The Committee reviewed the plans and objected to certain details. In particular, the Yoders wished to use a material on three walls of their garage known as “board and batten” siding, which is applied vertically, rather than horizontally. The Committee disapproved of this request for a number of reasons: the siding would be applied vertically, the material on the side of the house would not be the same as the exterior finish on the front, and although board and batten siding had been approved in limited instances for the trim on porches and entryways, it was not approved for siding.
Believing the Committee’s decision to be arbitrary, the Yoders sent a letter to Philip Connolly, the owner of Connolly Construction Company and a member of the Committee, on August 30, 2002, requesting an explanation of the decision and stating their intent to proceed with construction utilizing the board and batten siding as indicated in the building plans. Although Connolly did not respond in writing to the Yoders’ letter, he testified at trial that he had a conversation with Roger Yoder explaining the prohibition. In addition, Connolly sent a letter, dated September 3, 2002, to the Yoders’ builder advising him, “[b]oard and batten is not approved as a siding option. Please select another option for garage.”
Construction began on the Yoders’ home and, as they had indicated, the Yoders installed the board and batten siding on three walls of their garage. On November 5, 2002, Mr. Connolly sent a letter to the Yoders stating that the Committee had become aware of the installation, had previously notified the Yoders that such siding was not acceptable, stated that they were in violation of the covenants, and asked the Yoders to correct the problem as soon as possible.
When the siding had not been corrected, Connolly filed a Complaint for Declaratory Judgment and Injunctive Relief against the Yoders on March 17, 2003. Connolly sought both declaratory judgment on its right to enter the Yoders’ property and replace the materials in violation of the covenants at the cost of the Yoders and an injunction to stop the Yoders from continuing the violation of the covenants.
On April 11, 2003, the Yoders filed an answer and a counterclaim. The Yoders subsequently voluntarily dismissed their counterclaim. A bench trial was held on July 26, 2004. At the close of Connolly’s case-in-chief, which consisted of the testimony of Philip Connolly, owner of Connolly Construction Co. and Committee member, the Yoders moved for a directed verdict. The trial court found that reasonable minds could come to but one conclusion based upon the evidence presented and that conclusion was adverse to Connolly. Accordingly, the trial court granted the Yoders’ motion for directed verdict. Subsequently, on a motion for attorney fees, the trial court determined that both parties acted reasonably in pursuing the instant action and awarded the Yoders $1.00 in attorney fees.
The Court of Appeals overturned the Trial Court decision, stating that the Yoders had notice of the Guidelines, notice of the decision denying the use of board and batten and that the notices were timely. The covenants and Guidelines were enforceableand were done so reasonably. [Full opinion]
Posted by joewest at 10:44 AM
September 14, 2005
Homeowner goes down with his deck
130 Cal. App. 4th 559; 30 Cal. Rptr. 3d 15; 2005 Cal. App. LEXIS 984; 2005 Cal. Daily Op. Service 5236; 2005 Daily Journal DAR 7142
Paul Nielsen, owner of Lot 64 in the Woodridge Escondido subdivision, wanted to build a 17-by-21-foot deck with a hot tub adjacent to his home in Escondido, north of San Diego.
The codes, covenants and restrictions (CC&R) required that any structures be approved by the board of directors of the homeowners association or by the architectural committee. And indeed, Mr. Nielsen obtained approval from the architectural committee.
CC&Rs
The Woodridge Escondido CC&Rs, in addition to requiring prior approval of structures, gives each lot owner the use of a 5-foot side-yard easement, but prohibits the lot owner from installing "any permanent structure other then irrigation systems" in the side-yard easement area.
A deck and hot tub
Notwithstanding the restriction against "permanent structures," the Woodridge Escondido Architectural Committee approved Nielsen's deck and hot tub in the 5-foot side-yard easement area, and remarkably, even beyond the 5-foot area - into adjoining Lot 63.
Of course, the owner of Lot 63 objected, claiming the deck and hot tub should not have been built in the 5-foot easement area, and worse yet, should not have been built beyond the 5-foot area into Lot 63.
The association board of directors concluded that the architectural committee had erroneously approved the construction of the deck and hot tub.
Duh. The board ordered both removed, offering to pay Nielsen the removal cost.
Nielsen removed the portion of the deck that went beyond his 5-foot easement, and sued the association claiming, appropriately, that the architectural committee had approved the deck, and further contending the deck was not a "permanent structure."
The court rules
Ultimately, the matter proceeded to the court of appeal. Nielsen argued it would be a hardship to remove the deck and hot tub. The court disagreed. The court then found the deck and hot tub to be a "permanent structure" precluded by the CC&R's.
Even I could have told you that.
Nielsen argued there should be a "balancing of equities," such that the hardship of removing the deck and hot tub should be balanced with the minor inconvenience to the owner of Lot 63.
Indeed, there are "balancing of equities" boundary line encroachment cases, but the court found them inapplicable because the association had no legal authority to approve any permanent structure other then an irrigation system in the 5-foot side-yard easement.
In the end, Nielsen lost and the deck and hot tub were removed.
But that's not all. Nielsen paid the association's attorneys fees as prevailing party. This case should not have been litigated.
--------------------------------------------------------------------
Jim Porter is an attorney with Porter • Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor's appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. www.portersimon.com
Posted by joewest at 9:36 AM
June 28, 2005
Permanent structure in easement
WOODRIDGE ESCONDIDO PROPERTY OWNERS ASSOCIATION, Plaintiff and Respondent, v. PAUL NIELSEN, Defendant and Appellant. (CA Super. Ct. No. GIN029081)
This case involves a dispute between a homeowners association and a homeowner regarding the construction of a wooden deck over an easement. Plaintiff Woodridge Escondido Property Owners Association(association) managed a planned residential development known as Woodridge in Escondido. Defendant Paul Nielsen owned a home in Woodridge and had a side yard easement over the adjoining property of his neighbor, Virginia Kendall. The declaration of covenants, conditions and restrictions (CC&R's)expressly prohibited the installation of "any permanent structure other than irrigation systems" on the easement. After he received permission from Woodridge's architectural committee, Nielsen constructed a wooden deck that encroached upon the easement. The association's board of directors later found that the architectural committee had erroneously approved the construction of the deck, ordered Nielsen to remove the portion of the deck that encroached upon the easement, and offered to pay for the removal cost.1 Nielsen refused the offer. The association brought this action for injunctive and declaratory relief against him, seeking an order requiring him to remove the encroaching portion of the deck.
The court granted the association's motion for summary judgment andits motion for attorney fees. After the court issued an order granting Nielsen's motion to expunge the lis pendens, the association petitioned for writ relief (Woodridge Escondido Property Owners Assn. v. Superior Court/Nielsen (Apr. 26, 2004, D043860) [nonpub. opn.]). This court granted the petition and issued a peremptory writ directing the court to vacate that order and enter an order denying Nielsen's motion. Nielsen appeals the summary judgment and the order granting the association's motion for attorney fees. Nielsen also purports to appeal from the order granting his motion to expunge the lis pendens, and he requests "review" of this court's writ decision. For reasons we shall explain, we affirm the summary judgment and award of attorney fees in favor of the association and conclude that we have no authority to either reach the merits of Nielsen's purported appeal of the expungement order or review this court's final writ decision. [Full opinion - PDF]
Posted by joewest at 12:49 PM