The covenants, bylaws, rules and regulations of homeowners’ associations do not just govern the homeowners. They also govern the association themselves. The association’s failure to follow its own rules can prevent their enforcement against a homeowner.
In a Kansas Court of Appeals case, Falkner v. Colony Woods Homes Association, the declaration of covenants required a homeowner to obtain approval from the Association prior to constructing or altering any building. The covenants required building projects and materials to be approved in advance by the Association. The covenants also required the Association’s approval or disapproval within 30 days of a request for approval.
Previously, the Association notified homeowners that it would allow certain types of roofing materials, but that homeowners should wait for approval before beginning work. Without going through the approval process, the homeowner, Falkner, replaced the roof on their home with materials not previously approved by the Association. The Association informed Falkner that the roofing materials were not approved and provided a form for Falkner to fill out to request an exterior roofing material change. Falkner returned the form the next day.
After nearly three months, Falkner inquired with the Association whether the roofing materials had been approved. The Association said no and indicated it would take legal action. Prior to the Association filing suit, Falkner brought an action seeking a declaratory judgment. The trial court ruled in favor of Falkner, allowing the homeowner to leave the new roof in place.
The Kansas Court of Appeals confirmed the trial court’s judgment in favor of Falkner. By failing to respond within 30 days after Falkner submitted the approval request and failing to file suit to enjoin the homeowner in a timely manner, the Association waived its right to approve the use of roofing materials. Ultimately, the Association lost because it did not follow its own rules.
In a Maine Supreme Court case, Scott v. Fall Line Condominium Association, the Association filed suit against the condominium owner, Scott, seeking to recover $38.29 in outstanding interest and $500 in attorney fees. In response, Scott sought a declaratory judgment that all rules, regulations, and limitations affecting owners and their use of units not previously approved by a majority of owners are void.
The Association bylaws stated “Rules and regulations concerning the use of the Units and the Common Areas and facilities may be promulgated and amended by the Board of Directors with approval of a majority in interest of the Unit Owners.” The Association argued, despite the use of the word “may,” that the Board of Directors had unfettered authority to amend rules and regulations, regardless of whether the unit owners approved. The trial court disagreed and found that none of the Association’s rules and regulations had been properly adopted pursuant to the Association’s bylaws as none received approval from the unit owners.
On appeal, the Maine Supreme Court agreed with the trial court, stating the bylaws unambiguously require the approval from a majority in interest of unit owners in order to adopt or amend rules or regulations.
These cases are good reminders that homeowners’ association covenants, bylaws, rules and regulations govern the associations as well as the