HOA TAKING OWNER TO COURT IN S. C. FOR PTAC UNIT IN WINDOW

SandyM7 (South Carolina)
Posts: 7

Posted:

In May, 2016, we received a complaint from one of the homeowners in a small townhouse community that her neighbor put a window unit air conditioner in the living room window. We inspected and it is a Packaged Terminal unit (like a motel heat/air system) installed in the end window of the living room. We sent a certified letter, got 2 responses from the owners, who would not remove it. Our By-Laws say we can remove it, but he threatened us with "trespass."

Due to financial reasons, we could not hire an attorney, so 9 months later, we hired one, sent another letter to comply and got a letter from their attorney.

Now, we are headed to court and the new "amended answer" to our complaint basically is saying the following:

1. The PTAC system did not alter or modify the exterior of the building.
2. The HOA has not consistently enforce the Covenants, By-Laws, etc.

Any advice to win this one?

It's becoming a lot of work for us to put together records, letters, pictures, etc.

Thanks!

New Member
Sandy

Smartin

AugustinD
Posts: 5,144

Posted:

I think what is next is "motion practice" and discovery. "Motion practice" is the making of motions by one or both sides to a dispute to whittle down the issues. Typically motion practice involves removing parts of the complaint and answer as not allowed under the law. I think the two issues you raise are disputes over facts, so the lawsuit will proceed right to discovery. Discovery will identify why your side is arguing that the PTAC system did alter and modify the exterior of the building. Your HOA will have to explain its Declaration's standards for the exterior of buildings, applying the standards to the PTAC unit's appearance. If it seems tedious, it is. The opposition is trying to make this expensive for the HOA, and it will get away wiht this. Next your HOA will either have to explain how it has been consistent with the application of its covenants to the exterior appearance of the homes; or it will have to say it has not been 100% consistent but the present case with the PTAC is over the top.

Has your HOA been pretty good about enforcing violations of the covenants, with an active board and Architectural Review Committee or similar?

What alternative ways to cool one's home are there at your HOA? I think your HOA is going to be questioned about how members can get cooling into their homes. If the court says cooling is essential where you are, and people need to be able to put in cooling anyway they can, so the attempt to remove the PTAC is unacceptable, your HOA may be out of luck.

JaredC (Texas)
Posts: 264

Posted:

Going to court is no joke and it will cost you plenty of time and money.

First question: Are you enforcing HOA violations equally and without discrimination? If the answer is Yes then you'll want to produce a couple years worth of notices the HOA has sent to various homeowners and their eventual outcomes i.e. did those homeowners resolve their violations or did you have to take them to court too?

Regarding the system it sounds like it does not alter the exterior of the building however most HOA's have rules about what can be in windows. No signs, no crazy colored drapery, etc. This sounds like it would fall into that category.

The more you can prove your case and effectively refute the claims of the homeowner the better. Why? Because attorney's fees are involved. You probably have a good case about the PTAC however the issue of not uniformly and consistently enforcing violations could persuade the judge to deny any claims of attorney's fees. It's an equation.

CjC
Posts: 210

Posted:

In our HOA a member can make sure another member follows the rules by enforcing them through the judicial system. Even is your HOA has not enforced everything all of the time, a member can just take their neighbor to court and enforce it themselves. They don't have to show equal enforcement since it impedes them.

PainintheA
Posts: 77

Posted:

Can you quote SPECIFICALLY what restriction was violated by the temporary (window mount) of an AC unit ?

Unless ALL OTHER windows look EXACTLY alike (except for size) you may be found to be arbitrary and capricious.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Sandy

Just because a BD does nt around to enforcing a violation, does not mean the violation stands. There is generally a time limit though.

JenniferG11 (Texas)
Posts: 667

Posted:

Isn't the issue with these units aesthetics?

JenniferG11 (Texas)
Posts: 667

Posted:

A few thoughts:

Selective enforcement is on them to prove. Are there other window a/c units that you are ignoring?

Why go for removal rather than fine into compliance?

To the poster who asked how else they can cool their home, I am sure there is central a/c in S. Carolina.

They either don't want to repair theirs, or want to cool just one room rather than the entire town-home.

Which I understand, I'd have a room a/c for my bedroom if I could. I don't think I can, since that still requires venting through the window.

I have made a suggestion to our board that this time of year, not to be trigger happy on window units as they are likely temporary, while people are making repairs. Personally, I would go further in that if someone needed an expensive repair, or to replace their system, to grant a waiver for a longer period of time to use the window unit.

To make sure selective enforcement doesn't become an issue, were I a board member, I would have all this documented.

Notice sent to unit ___. Owner responded that the unit is temporary until an a/c company can come to repair on ____ day.

No idea if they agree that if unit ___ says 'I cannot afford to replace my unit until next year' if they would allow it to get a waiver for the rest of this summer. And that notion of mine might be misguided. They have the right to say 'sorry'. It's not the HOAs problem if someone can't afford to maintain their unit properly. I am just a softie

PainintheA
Posts: 77

Posted:

Quote:

Posted By JenniferG11 on 08/07/2018 4:15 PM
Isn't the issue with these units aesthetics?

perhaps

the issue is:

? aesthetic to whom ?

the past BOD ?

the present BOD ?

one neighbor ?

most of the neighbors ?

yesterday ?

tomorrow ?

is aesthetic CLEARY and PRECISELY defined in the Restriction ?

Ambiguous, Capricious, Arbitrary comes to mind

food for thought:

COVENANTS AND THE COURTS

This case contained a discussion about what a covenant is and how the courts interpret them. While this is a case from NC, I have seen similar thoughts expressed in cases from other states. The text reads:

“The word covenant means a binding agreement or compact benefiting both covenanting parties. Covenants accompanying the purchase of real property are contracts which create private incorporeal rights, meaning non-possessory rights held by the seller, a third-party, or a group of people, to use or limit the use of the purchased property. Judicial enforcement of a covenant will occur as it would in an action for enforcement of any other valid contractual relationship. Thus, judicial enforcement of a restrictive covenant is appropriate at the summary judgment stage unless a material issue of fact exists as to the validity of the contract, the effect of the covenant on the unimpaired enjoyment of the estate, or the existence of a provision that is contrary to the public interest.

“While the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants, such covenants are not favored by the law, and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land. The rule of strict construction is grounded in sound considerations of public policy: It is in the best interests of society that the free and unrestricted use and enjoyment of land be encouraged to its fullest extent.

“The law looks with disfavor upon covenants restricting the free use of property. As a consequence, the law declares that nothing can be read into a restrictive covenant enlarging its meaning beyond what its language plainly and unmistakably imports.

“Covenants restricting the use of property are to be strictly construed against limitation on use, and will not be enforced unless clear and unambiguous. This is in accord with general principles of contract law, that the terms of a contract must be sufficiently definite that a court can enforce them. Accordingly, courts will not enforce restrictive covenants that are so vague that they do not provide guidance to the court. Unless the covenants set out a specialized meaning, the language of a restrictive covenant is interpreted by using its ordinary meaning.

“Wein II, LLC v. Porter, 198 N.C.App. 472, 479–80, 683 S.E.2d 707, 712–13 (2009) (emphasis added) (citations, quotation marks, ellipses, and brackets omitted).”

JaredC (Texas)
Posts: 264

Posted:

Food for thought:

First, I have to agree with PainintheA on this one. That excerpt is spot on with how I've always viewed the subject.

Second, I was an HOA president for more than a decade and one of our homeowners did exactly this. They installed a window A/C unit that was flush with the exterior of the building. It was technically a violation but it was white like the color of the window and it most definitely did not jump out and say "Hey I'm an ugly A/C unit!" It's been years and it's still there. I chose not to go after the homeowner for several reasons: First, I've worked with attorneys on HOA issues and boards don't have near the power they think they do. Second, it didn't look terrible; in fact I doubt very many people noticed besides me (I can be an anal SOB after all). Third, I have a strong disdain for governments which is somewhat ironic for an HOA president! I really believe in private property rights. As long as people don't go crazy I always let things slide. I often thought of it as picking my battles. Yes, we did have to sue several people for various things but we always won because we chose to be reasonable and neighborly.

Obviously no one can judge your situation like you can but I just wanted to add some friendly advice.

MarekP (iowa)
Posts: 3

Posted:

No one seems to have mentioned what the actual basis for the complaint about the PTAC is...was it cosmetic, or just that a covenant was broken, or was it about some functional interference with the original complainant's enjoyment of their property, noise perhaps? I hate those window things, they produce a lot of noise that ruins my peace and ability to relax and to concentrate. Noise would be a serious issue for me, appearance not so much, except that it might give others the idea that they too can make changes, and then who knows where it would lead? It is not good to set a precedent of allowing one unauthorized change in that it seems to tempt others to start making their own changes.

Next, if your by-laws allow your HOA to remove, as you said, then what is the basis of the owners with the PTAC "threat" of tresspass? So then since you into lawyers now already, why not ask your lawyer for opinion and advice on whether the "tresspass" threat holds merit? If you find that the HOA is within its rights, then act to remove the AC, and force the other party to take the HOA to court or, perhaps they would take it as a sign then that the HOA is not a pushover, and maybe then they approach the HOA for approval per normal process laid out in the covenants and by-laws.

MP

MarekP (iowa)
Posts: 3

Posted:

No one seems to have mentioned what the actual basis for the complaint about the PTAC is...was it cosmetic, or just that a covenant was broken, or was it about some functional interference with the original complainant's enjoyment of their property, noise perhaps? I hate those window things, they produce a lot of noise that ruins my peace and ability to relax and to concentrate. Noise would be a serious issue for me, appearance not so much, except that it might give others the idea that they too can make changes, and then who knows where it would lead? It is not good to set a precedent of allowing one unauthorized change in that it seems to tempt others to start making their own changes.

Next, if your by-laws allow your HOA to remove, as you said, then what is the basis of the owners with the PTAC "threat" of tresspass? So then since you into lawyers now already, why not ask your lawyer for opinion and advice on whether the "tresspass" threat holds merit? If you find that the HOA is within its rights, then act to remove the AC, and force the other party to take the HOA to court or, perhaps they would take it as a sign then that the HOA is not a pushover, and maybe then they approach the HOA for approval per normal process laid out in the covenants and by-laws.

MP

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By PainintheA on 08/07/2018 5:18 PM

Posted By JenniferG11 on 08/07/2018 4:15 PM
Isn't the issue with these units aesthetics?

perhaps

the issue is:

? aesthetic to whom ?

the past BOD ?

the present BOD ?

one neighbor ?

most of the neighbors ?

yesterday ?

tomorrow ?

is aesthetic CLEARY and PRECISELY defined in the Restriction ?

Ambiguous, Capricious, Arbitrary comes to mind

food for thought:

COVENANTS AND THE COURTS

This case contained a discussion about what a covenant is and how the courts interpret them. While this is a case from NC, I have seen similar thoughts expressed in cases from other states. The text reads:

“The word covenant means a binding agreement or compact benefiting both covenanting parties. Covenants accompanying the purchase of real property are contracts which create private incorporeal rights, meaning non-possessory rights held by the seller, a third-party, or a group of people, to use or limit the use of the purchased property. Judicial enforcement of a covenant will occur as it would in an action for enforcement of any other valid contractual relationship. Thus, judicial enforcement of a restrictive covenant is appropriate at the summary judgment stage unless a material issue of fact exists as to the validity of the contract, the effect of the covenant on the unimpaired enjoyment of the estate, or the existence of a provision that is contrary to the public interest.

“While the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants, such covenants are not favored by the law, and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land. The rule of strict construction is grounded in sound considerations of public policy: It is in the best interests of society that the free and unrestricted use and enjoyment of land be encouraged to its fullest extent.

“The law looks with disfavor upon covenants restricting the free use of property. As a consequence, the law declares that nothing can be read into a restrictive covenant enlarging its meaning beyond what its language plainly and unmistakably imports.

“Covenants restricting the use of property are to be strictly construed against limitation on use, and will not be enforced unless clear and unambiguous. This is in accord with general principles of contract law, that the terms of a contract must be sufficiently definite that a court can enforce them. Accordingly, courts will not enforce restrictive covenants that are so vague that they do not provide guidance to the court. Unless the covenants set out a specialized meaning, the language of a restrictive covenant is interpreted by using its ordinary meaning.

“Wein II, LLC v. Porter, 198 N.C.App. 472, 479–80, 683 S.E.2d 707, 712–13 (2009) (emphasis added) (citations, quotation marks, ellipses, and brackets omitted).”

Townhomes and condos can be much more restrictive than single family homes.

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By JaredC on 08/07/2018 7:36 PM
Food for thought:

First, I have to agree with PainintheA on this one. That excerpt is spot on with how I've always viewed the subject.

Second, I was an HOA president for more than a decade and one of our homeowners did exactly this. They installed a window A/C unit that was flush with the exterior of the building. It was technically a violation but it was white like the color of the window and it most definitely did not jump out and say "Hey I'm an ugly A/C unit!" It's been years and it's still there. I chose not to go after the homeowner for several reasons: First, I've worked with attorneys on HOA issues and boards don't have near the power they think they do. Second, it didn't look terrible; in fact I doubt very many people noticed besides me (I can be an anal SOB after all). Third, I have a strong disdain for governments which is somewhat ironic for an HOA president! I really believe in private property rights. As long as people don't go crazy I always let things slide. I often thought of it as picking my battles. Yes, we did have to sue several people for various things but we always won because we chose to be reasonable and neighborly.

Obviously no one can judge your situation like you can but I just wanted to add some friendly advice.

And if it had jumped out saying 'ugly a/c unit' would you have let it pass? And then others see it and they also get ugly a/c units, and now the community is full of them?

JenniferG11 (Texas)
Posts: 667

Posted:

This ad is funny to me because it specifically says their portable a/c's 'defy HOAs'. I am not positive that is always true. I would hope mine would accept these, if the method of venting was done to look nice and blend well enough, but it is good advertising.

Also could be good for an HOA board that maybe says you can have one like this, but not the kind that hang out the window.

OP, would your board allow these?

"Home Owners Associations have the power to control all exterior aesthetic aspects of your home because you agreed to abide by the rules when you bought the house.

The average letter most homeowners received usually begins, "Window Air Conditioners must be removed and will and not be permitted to be reinstalled."

Almost every newer housing development has a ban on window air conditioner units, which most likely states, "no window mounted ac units." Even if you are just renting, the home owner agreed to those by laws when they bought the home, and therefore any resident of that home has to also agree to the by-laws.

*Why the Ban on Window Units?*

Window air conditions are dangerous and have been known to fall out of windows and hurt people.

They're also noisy and can make a horrible racket. They're unsightly and homeowner associations are organized to keep the property looking appealing. Window air condition units drip and leave stains down the side of a house and protrude out of the side.

HOA's have a lot of rules regarding how your house looks like keeping paint fresh, siding repaired, lawns mowed, and often bans things that are considered ugly, like window units.

https://www.factorybuysdirect.com/blog/portable-air-conditioners-defy-hoa-bans/

This is not part of the ad: I have used both, and the portable one cooled my entire condo. It was awesome.

PainintheA
Posts: 77

Posted:

Townhomes and condos can be much more restrictive than single family homes.

True, but,

"The law looks with disfavor upon covenants restricting the free use of property. As a consequence, the law declares that nothing can be read into a restrictive covenant enlarging its meaning beyond what its language plainly and unmistakably imports."

"Covenants restricting the use of property are to be strictly construed against limitation on use, and will not be enforced unless clear and unambiguous."

still apply.

So, IMO, unless the actual RESTRICTIONS address window units ....................

JaredC (Texas)
Posts: 264

Posted:

I don't disagree with you Jennifer. It's a barrel of snakes. What I have learned is that many HOA violations are subjective in nature. For example our covenants say people should keep their patio's clean but what does that actually mean? It's subjective. Very recently my sister (in another Texas HOA) received a notice for a violation that was so ridiculous I told her to just toss it out and pay no attention. Been there done that and the letter wasn't even a properly formatted 209 variety. Welp, it's been three months and there has been no follow up from the HOA. Of course not. 99.9% of the people out there would never even notice it! P.S. It was about bricks surrounding a tree that should have their holes facing upward rather than facing parallel to the ground. Stupid eh? But technically a violation. Sigh.

Enforcement of violations is a real balancing act between reasonableness and the very real need to prevent a violation disease from spreading.

JenniferG11 (Texas)
Posts: 667

Posted:

I understand where you are coming from, Jared, but window a/c units are almost universally disallowed.

PainintheA
Posts: 77

Posted:

came across this well worded opinion :

The first thing to look at it is, what do the HOA agreements or rules state? If they say there can be no window A/C units, or give the HOA board authority to promulgate or put rules about air conditioners or what can be placed in your windows, etc.?

HOAs have whatever authority their operating agreements and agreements with homeowners provide. If the HOA has the legal authority under the documents governing it, it can probably do this; if it doesn't, the HOA cannot arbitrarily make up new rules. If in doubt, you should consult with a real estate attorney with experience in HOAs to help you understand the limits of its authority. Good luck.

SandyM7 (South Carolina)
Posts: 7

Posted:

Thanks everyone. There's more to this issue!

The HOA replaced outer perimeter fences earlier this year. We also added some additional fencing that enclosed the patios in the four-plex this townhouse is in so no one could see any of their patios. The board decided it would greatly improve curb appeal because it is in the middle of the community and their patios are in plain site. Now, you cannot see the unit in the window.

This is not a window-unit air conditioner. This is hard-wired and permanent with boards and caulking added to seal it place. He calls it a "central heating and air system." He disclosed the type of unit it was in his first reply letter to the board. I checked and it has a recall notice dated April 2018, for causing fires.

Smartin

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Now, we are headed to court and the new "amended answer" to our complaint basically is saying the following:

1. The PTAC system did not alter or modify the exterior of the building.
2. The HOA has not consistently enforce the Covenants, By-Laws, etc.

1. Oh yes it did especially if in plain view.

2. If you never had this particular issue before then how can one say you have not consistently enforced the covenant.

My attorney would make chopped liver of those two justifications.

PainintheA
Posts: 77

Posted:

..... 1. The PTAC system did not alter or modify the exterior of the building. .....

Technically correct.

albeit

The PTAC system DID alter or modify the exterior APPEARANCE of the building.

as would:

a window fan

a window screen

a flower box

an open window

a 'baby box'
see: https://3.bp.blogspot.com/-cz9Zxh7BRag/VQ_wyW5dB3I/AAAAAAABX00/zSQA6Jt8efw/s1600/London%2Bbaby%2Bcages%2C%2B1930s%2B(4).jpg