August 9th, 2008

As seen in The Arizona Republic
by: Clint Goodman

QUESTION: I installed a playset in my backyard about three years ago.  My CC&Rs say that all improvements must be approved by the association before installation and that things in my backyard must be below the fence line.  I installed the playset without getting it approved and it is taller than the fence.  Just recently, my HOA sent me a letter telling me that I must remove the playset or it will take me to court.  Our association is dotted with the same playset but they are not cited, just me.  Can my HOA now, years later, demand that only I remove the playset?  Isn’t that selective, unreasonable enforcement?

ANSWER: Like it or not, homeowners have a “contract” with their association.  This contract is the association’s Declaration of Covenants, Conditions and Restrictions (CC&Rs).  Many CC&Rs require homeowners to get approval from associations before installing structures, additions or improvements.  These requirements are typically upheld by the courts.  Some homeowners learn this the hard way.

In the past, courts could order structures be removed but only after considering the relative hardships and injustices the order may create.  Some factors the court considered included the public interest and policy behind the order, misconduct of the parties, delay on the part of the association, how much it would cost to remove the offending structure and the adequacy of alternatives to the structure.

Today, while consideration of these factors is important, courts hold that it is not error to refuse to consider relative hardships and injustices to the homeowner when the homeowner is aware of a restriction but still builds an offending structure.  For example, Mr. Decker began construction of a building but soon stopped after he learned that it violated his CC&Rs.  Some time passed and Mr. Decker again started construction.  Neighbors were not happy with the building and sued him.  Mr. Decker admitted that he knew he had violated a restriction, but continued construction anyway because “he had so much money in it that he couldn’t do otherwise.”  The court refused to consider the hardships Mr. Decker would suffer if he were ordered to remove the offending structure because he knew that he was building it in violation of the CC&Rs.  Decker v. Hendricks, 97 Ariz. 36, 396 P.2d 609 (1964).

Still, there are some common situations where courts will refuse to order a homeowner to remove an addition, improvement or structure that was installed without approval or that violates some other provision in the CC&Rs, which I will address in the next HOA Q&A.