United States Navy Rear Admiral Grace Hopper is quoted as saying, “It’s easier to ask forgiveness than it is to get permission.” Possibly because this saying is so popular, it can cause headaches for homeowners associations. This is particularly true when owners erect accessory buildings, such as a detached garage, in-law suite, out building, pool house, or shed, without first seeking approval from their homeowners association. In many cases, property owners are simply unaware aware that deed restrictions require approval from an architectural control committee before commencing construction. In other cases, owners do not believe that a homeowners association will enforce restrictive covenants as the HOA has been lax in the past. No matter the reason for failing to obtain approval from an architectural control committee., it is not uncommon for an owner that violates the HOA bylaws to seek forgiveness, as opposed to permission, in an attempt to allow an unapproved accessory building to stay. However, two cases from the Michigan Court of Appeals indicate that it is indeed better for owners to request permission to build an accessory building under the restrictive covenants instead of asking for forgiveness after the fact.
Asking for Forgiveness After Failing to Comply With the HOA Covenants
The first case deals with homeowners who did not seek permission from the homeowners association before building an accessory building. This case involves not only enforcement of a restrictive covenant, but also considerations of whether the accessory building should be allowed to stay, despite the restrictive covenants.
In Oakwood Meadows Homeowners Ass’n v Urban, unpublished per curiam opinion of the Court of Appeals, issued June 26, 2014 (Docket No. 316193), the defendants were owners who erected a “pump house” in 2008 to protect their pool’s pump and heater from the elements. The pool was surrounded by a fence and the pump house was within the fence perimeter. In 2011, the homeowners association demanded that the property owners remove the pump house because it was in violation of a provision of the restrictive covenants that prohibited “outbuildings, sheds, detached garages of the like” from being “erected, placed or permitted to remain upon any lot.” When the homeowners did not remove the pump house, the homeowners association filed suit and requested a court order requiring the removal of the pump house.
The trial court dismissed the homeowners associations complaint because the declaration allowed the pool and a fence was legally required to surround the pool, so the trial court determined that “what goes inside of that fence to service the pool within is allowed and I don’t think that it causes irreparable injury to the neighborhood.” The trial court also stated that if the pool house violated the HOA bylaws, it was a slight or technical violation.
Analysis of the CC&R’s
The Michigan Court of Appeals first looked at the applicable provision of the restrictive covenants, which provided:
No building or structure shall be erected, altered, placed, or permitted to remain upon any lot other than one detached one family dwelling not exceeding two stories in height. . . . No outbuildings, sheds, detached garages or the like shall be erected, placed or permitted to remain upon any lot. . . .
The Court of Appeals first determined that although the deed restrictions did not expressly prohibit pump houses, they did prohibit outbuildings, sheds, detached garages, and the like. Accordingly, the provision prohibited the buildings that were expressly enumerated and other buildings that were of the same kind, class, nature, or character. The Court of Appeals held that the provision restricted any buildings that were not a dwelling or an attached garage, which would include “free-standing buildings that are not used as a dwelling.” Therefore, the Court of Appeals held that the pump house violated the restrictive covenants.
Next, the Court of Appeals considered the proper remedy for the violation. The general rule is that a breach of a restrictive covenant, including a homeowners association’s declaration, can be the subject of an enforcement proceeding, “no matter how minor and no matter how de minimis the damages[.]” Terrien v Zwit, 467 Mich 56, 61; 648 NW2d 602 (2002). However, there are equitable exception to the general rule, such as “(1) technical violations and absence of substantial injury, (2) changed conditions, and (3) limitations and laches.” Webb v Smith (After Second Remand), 224 Mich App 203, 211; 568 NW2d 378 (1997). The first and third exceptions were at issue.
A technical violation of a restrictive covenant is “a slight deviation or a violation that can in no wise . . . add to or take from the objects and purposes of the general scheme of development.” Id. at 212. The pump house was not a technical violation because the declaration expressly forbade sheds and outbuildings. Moreover, the general scheme of the homeowners association “contemplates a neighborhood free of sheds and outbuildings,” and the pump house “clearly takes away from the purpose of the general scheme of development.”
Regarding limitations and laches, the Court of Appeals determined that there were no limitations exceptions because there was no evidence that the homeowners association promised the homeowners that it would not take legal action against them to have the pump house removed.
Laches is an equitable defense that requires a defendant to prove that a plaintiff was not diligent, and that the defendant is prejudiced. The Court of Appeals determined that the homeowners association diligently pursued the violation because the homeowners association immediately demanded that the property owners remove the pump house when it became aware of the pump house. When the property owners refused, the homeowners association’s attorney sent the homeowners a demand letter in November 2011, and when the homeowners still refused to remove the pump house, the homeowners association filed the lawsuit in January 2012. Even if the time between the shed being constructed and the lawsuit was considered unreasonable, the Court of Appeals determined that the homeowners were not prejudiced by the delay because if the lawsuit were filed the day after the pump house was built, the homeowners would still have to remove the pump house.
Because the pump house violated the restrictive covenants, and none of the equitable exceptions applied, the Court of Appeals reversed the trial court and required the property owners to remove the pump house.
Asking for Permission From the Homeowners Association
The next HOA case addresses a situation where the property owners originally asked for permission to build an accessory building and received approval for the construction. However, the property owners deviated from the approved plans and risked the consequences.
In Newberry Estates Homeowners Ass’n v Cook, unpublished per curiam opinion of the Court of Appeals, issued March 15, 2011 (Docket No. 295468), the homeowners association’s declaration prohibited any building from being erected other than a single-family dwelling with an attached garage, but made an exception for accessory structures that were less than 200 square feet. The homeowners requested permission to build a 12 foot by 16 foot shed, totaling 192 square feet, which the homeowners association approved, “subject to the community’s documents.” But after construction of the shed began, the homeowners association received complaints about the shed and requested to inspect the shed. The homeowners association determined that the shed was not in compliance with the restrictive covenants and filed a lawsuit requesting a court order for the homeowners to remove the shed. The trial court agreed that the shed violated the deed restrictions and required the property owners to remove the shed within 30 days.
Analysis of the CC&R’s
On appeal, the Michigan Court of Appeals considered the applicable provisions of the restrictive covenants, which provided:
2. No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two (2) stories in height with a private attached garage for not more than three (3) cars.
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- No structure of a temporary character, trailer, tent, shack, barn or other outbuildings shall be placed on any lot at any time, either temporarily or permanently, except a structure to be used by builders for storage of materials during the construction period or for a sales trailer for marketing purposes during the construction and sales period. This provision shall not be deemed to prohibit the storage of trailers or other vehicles within garages in conformance with paragraph 14 below.
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- No inoperative vehicles, commercial vehicles, house trailers or mobile trailers, boats or boat trailers shall be permitted to be parked or stored on any lot in said subdivision unless such vehicles are parked or stored in a garage on said lot which conforms to the requirements pertaining to the construction of garages as set forth above in paragraph 2. Accessory structures shall be permitted, but not greater than 200 square feet in size. . . . [Emphasis added.]
The Court of Appeals first determined that paragraph 2 of the restrictive covenants prohibited all structures that were not a dwelling with an attached garage. Additionally, paragraph 6 prohibited structures of a temporary character. Finally, even though the shed was less than 200 square feet, “there was no evidence that it was used to store vehicles as set forth in section 14.” Therefore, the Court of Appeals determined that the shed violated the declaration.
Further, the Court of Appeals denied the property owners’ argument that the shed should be permitted to stay because the homeowners association granted permission to build the shed. The Court of Appeals denied this argument for two reasons. First, the homeowners association’s approval was conditioned on the work being performed in accordance with the deed restrictions, which, as discussed, the shed violated three provisions of the declaration. Second, the Court of Appeals noted:
[The homeowners association] approved a structure that was very different form the structure [the owners] built. [The owners] indicated to [the homeowners association] that they intended to build a 12 by 16 foot “shed” that was seven feet tall and made by Heartland. In reality, [the owners] built a 12 by 16 foot two story building, built by another company.
Accordingly, the Court of Appeals affirmed the trial court’s order that required the property owners to remove the shed.
Is it Better to Ask your HOA for Forgiveness or Permission?
These cases demonstrate that Rear Admiral Hooper’s saying that it is better to ask for forgiveness than permission does not apply to property owners who erect accessory buildings without first obtaining their homeowners associations’ approval. If a homeowner constructs an accessory building, such as a detached garage, in-law suite, out building, pool house, or shed, without first obtaining the homeowners association’s approval, or if the construction is not in conformity with the approved building plan, the homeowners association should take steps to enforce the restrictive covenants and require the property owner to remove the accessory building. Accordingly, homeowners association should contact a homeowners association attorney to enforce the restrictive covenants if a property owner has constructed an accessory building violation of the deed restrictions.
Michael T. Pereira is an attorney with Hirzel Law, PLC and focuses his practice on community association law. Mr. Pereira received his Bachelor of Arts in Political Science from the University of Michigan. He then obtained his Juris Doctor degree from the University of Detroit Mercy School of Law, where he graduated second in his class and served as the Executive Editor of Outside Articles on the Detroit Mercy Law Review. After law school, Mr. Pereira worked as a research attorney at the Michigan Court of Appeals before clerking for the Honorable Patrick M. Meter and the Honorable Anica Letica in the Michigan Court of Appeals. Mr. Pereira can be reached at (248) 397-6596 or firstname.lastname@example.org.