INDIANA COURT OF APPEALS
UPHOLDS VALIDITY OF “NON-WAIVER” CLAUSE
CONTAINED IN HOMEOWNERS ASSOCIATION’S COVENANTS
FOR A FENCE VIOLATION

 

A recent appellate decision has been issued by the Indiana Court of Appeals in a case involving a homeowners association in West Lafayette. This appellate decision supports a community association’s architectural

approval / denial authority as described in its Declaration of Covenants, Conditions & Restrictions, and answers the question as to whether the association would be denied enforcement if immediate compliance is not sought.

 

As in most community associations, the covenants for the HOA require all owners to obtain written approval for any modification to the home, including the installation of a fence. The application would need to provide specifications for the project, including materials, color, locations, etc. The covenants for this association provide a guideline for fencing by prohibiting a fence from being taller than 6 feet in height and requiring a scalloped top.

 

In this case, the homeowners wanted to install a privacy fence on their property, claiming they were seeking safety and security. The homeowners verbally spoke with the Board President, who was the only member of the Board at that time, regarding the process for applying and their intentions for the fence, before submission of the official application package. In early June of 2014, the homeowners submitted the complete plans and application for a modification to the association for review by the Board. The application included a request to install an 8-foot fence that did not include a scalloped top. The fence type chosen did not comply with the straightforward guideline included in the association’s Declaration of Covenants.

 

The association’s sole Board member sent a written reply by email on

June 23, 2014, notifying the homeowners that their submission did not comply with the requirements of the Association due to the request for an 8-foot fence. The Board member did tell the homeowners that he would do further investigation with other residents to see if there was a way to allow the request. On July 24, 2014, the homeowners reached out to the Board member requesting an update. The homeowners were told by email again by the Board member that their proposed fence did not comply with the covenants but that if the homeowners wanted to get the covenants changed, the Board member could try to arrange for a membership meeting.

 

Despite receiving the emails rejecting the request for the proposed fence, the Owners went ahead with the contractor and installed a fence. This fence, however, did meet the 6-foot height requirement, but it lacked the scalloped top as required in the Declaration of Covenants.

 

After a new Board was in place, it was not until after the summer of 2017, when the non-compliant fence was discovered. Accordingly, the association filed suit in January of 2018 regarding the unapproved fence on the homeowners’ property. The trial court in Tippecanoe County entered a Judgment in favor of the association after the parties filed a Joint Stipulation of Facts. This Joint Stipulation made note of the fact that neither the old Board member, nor the residents at the time, allegedly saw or complained about the unapproved fence that was installed.

 

As part of the final judgment, the trial court required the homeowners to either file a proposal on how they would modify the fence to meet the association’s requirements or remove the fence by a stated deadline. Instead of doing either, the homeowners filed an Appeal with the Indiana Court of Appeals, claiming the trial court judge made a mistake because the owner were not given proper written notice of the denial and therefore under the Declaration of Covenants, their fence was deemed approved.

 

As in many other covenants, the association’s Declaration states that “[i]n the event that written approval is not received as required hereunder within thirty (30) days after complete plans and specifications have been submitted, approval will not be required and this Section will be deemed fully complied with.”

 

The Indiana Court of Appeals agreed with the trial court judge in that the email sent by the President of the association on June 23, 2014,

was the written denial of the proposal for the fence. This email was sent within the 30-day time period prescribed in the covenants. Therefore, the homeowners had proper notice of the denial of the fence proposal. Furthermore, the homeowners installed a different fence than originally requested and as such, no application was ever provided to the Association for the new fence design.

 

Additionally, the homeowners claimed in the appeal that the association acquiesced (or consented) to their fence by not pursuing compliance for 3 years. However, the Declaration of Covenants contains what is commonly referred to as a “non-waiver clause” that states “No delay or failure by any person to enforce any of the restrictions or to invoke any available remedy with respect to a violation or violations thereof shall under any circumstances be deemed or held to be a waiver by that person of the right to do so thereafter, or an estoppel of that person to asset any right available to him upon the occurrence, recurrence or continuation of any violation or violations of the restrictions.”

 

The Indiana Court of Appeals stated that non-waiver clauses, such as the one found in this association’s covenants, are enforceable in Indiana and cited a 2006 case decided by the Court. Therefore, the association was not precluded from pursuing the unapproved fence and the homeowners are barred from raising this defense.

 

In the event you have questions regarding your homeowners association’s specific covenants and requirements for architectural approvals, or whether your homeowners association or condominium association has the same “non-waiver clause” as this Association, you should contact your association’s attorney or you can contact our office to discuss.

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