UNPUBLISHED Kentucky Appellate Court decision (January 9, 2015).
This case involved a dispute between a homeowner and his HOA over an addition that the homeowner sought to construct to his home which the Association maintained violated side-yard setback restrictions that were contained in the community’s governing documents. The subdivision consisted of large lots ranging from 3.6 to 6.3 acres each. Each of the homes in the subdivision was valued in excess of $1,000,000. The restriction at issue prohibited construction within 25 feet of the side-yard property lines. The Association’s governing documents also contained a provision whereby property owners could seek a waiver of the restrictions.
The homeowner requested a waiver of the side-yard setback restriction in order to allow for construction of an addition to the side of his home that extended approximately 11 feet into the setback area. Notwithstanding the fact that the requested waiver was denied, the homeowner moved forward with steps to construct the addition in violation of the prohibition and the Association commenced litigation against the homeowner to prohibit construction of the addition. The homeowner defended by contending that the Association had waived the ability to enforce the setback restrictions as a result of having acquiesced to other violations.In support of his position, the homeowner presented evidence that on 7 out of 10 other lots in the subdivision there were structures placed within the setback areas that apparently violated the same provisions of the Association’s governing documents. Those structures included retaining walls, landscaping features, driveway pedestals and signs, portions of driveways and a pool house that extended 7 feet into the setback area.
The trial court concluded that allof the other violations, with the exception ofthe pool house, were minor and not material violations.The trial court further found that a prior single material violation (allowing the pool house) did not equate to a waiver of the Association’s right to enforce the setback restrictions. Accordingly, an injunction was issued to prevent the homeowner from constructing the addition.
To address the issue concerning their pool house, the owners of that property requested and obtained a retroactive waiver of the setback restriction.Following the Association’s granting of the waiver for the property with the pool house, the homeowner who was seeking to construct the addition went back tocourt to seek an order that the Association had waived its ability to enforce the restriction against him by granting the variance to the other homeowners.After the trial court ruled against the homeowner, he filed an appeal with the determinative issue being whether the setback restriction was unenforceable.
The appellate court ruled that the right to enforce restrictive covenants may be lost by waiver, abandonment, or by a general change in the character of the neighborhood to which the covenants applied.The court further noted that the arbitrary enforcement of covenants does not render them unenforceable unless the arbitrary enforcement has resulted in a fundamental change in the character of the neighborhood thereby defeating the purpose of the restriction. In ruling in favor of the Association’s enforcement of the restriction, the court found that the addition sought by the homeowner was of a much greater magnitude than all of the previously unknown violations which were all relatively insignificant secondary structures.The court concluded that, while the Association may have arbitrarily enforced the setback restrictions, that arbitrary enforcement did not result in a fundamental change in the character of the neighborhood.
See case decision: Small_v._W._Vale_Homeowners’