For years, I have paid my homeowner’s association dues.  Recently, my neighbors selected me to serve on the board (… I was unopposed and I had to promise to name my next child after the development … ).  I have even been involved as counsel in a number of HOA disputes over the past few months.  In Tennessee, the only thing you need to know is that the courts will enforce those HOA covenants.

Last week, the Court of Appeals issued its opinion in Hershey v. Cathey (pdf), a dispute involving the HOA’s Architectural Control Committee.  When the defendants began construction of a fence on both of their lots, the HOA filed a lawsuit to stop the construction.  The HOA claimed that the defendants had not obtained approval to erect a fence and that the fence was not in compliance with the applicable restrictive covenants. The defendants asserted that they obtained the required approval and that strict compliance with the restrictions had been waived.

The trial court held the following: (1) that plans and specifications were required to be submitted to the Architectural Control Committee for its approval; (2) that no plans or specifications were ever submitted; and (3) that the defendants had not obtained the requisite approval to construct the fence at issue.  Accordingly, the trial court entered an order requiring the defendants to remove the fence and to comply with the Architectural Control Committee restrictions.  The appellate court affirmed that ruling.  Here are two lessons from the case: 

First, the courts will enforce HOA covenants.  Whether you are a new homeowner or you are one of the leaders in a homeowner association, you must read your restrictive covenants.  The architectural guidelines may be strict or broad, depending on how they are written.  The court is going to look to the express language of the covenant to resolve any disputes. 

Second, you must prove your case at the trial court.  The decision by the appellate court in Hershey was based largely upon the factual findings of the trial court.  Indeed, the appellate court wrote: "The trial court made a specific finding of fact that Defendants did not obtain approval to build the fence."  The appellate court presumes factual findings are correct unless the preponderance of the evidence is otherwise. 

Image: glen edelson