Enforce Covenants Consistently to Avoid Waiver
The South Carolina Court of Appeals agreed with the Master-in-Equity and found an association waived its right to enforce certain covenants. See Arcadian Shores Single Family Homeowners Ass'n v. Cromer, 2007 S.C. App. LEXIS 98 (Ct. App. 2007).
The Association's declaration of covenants allowed association members to construct fencing upon "submitting plans and specifications to and obtaining written approval of the plans by the Developer," and later by the Association. One member built a three foot high solid stucco wall instead of the three foot masonry lattice wall the plans called for. The Association sought to compel the owner to tear down the fence. See id. at *4.
The Court concluded the Association waived the right to require approval of fencing plans and specifications, if any was granted by the declaration. See id. at *12.
A waiver is the "intentional relinquishment of a known right." Id. at *13 (citing Gibbs v. Kimbrell, 311 S.C. 261 (Ct. App. 1993). An association does not necessarily have to ensure every lot looks identical to maintain its enforcement rights. However, a neighborhood scheme must be apparent.
In this case, the Court found that the Association inconsistently enforced its right to require approval of fencing plans and specifications. Some members had obtained approval, others had not. Moreover, evidence showed that the Master himself visited the subdivision and could not determine the existence of a neighborhood theme. By repeatedly failing to require approval, the Association waived or lost its right to make plans and specifications conditional upon its approval. See id. at *14.
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Posted by Ryan McCabe at 6/9/2009 7:55 AM 
Categories: Property Owners Association, Homeowners Association, Common-Interest Community Association, Condominium Association, Covenant Enforcement, Injunctions
Categories: Property Owners Association, Homeowners Association, Common-Interest Community Association, Condominium Association, Covenant Enforcement, Injunctions
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