#31-06, Cunningham & Fisher v. Decoverly I Homeowners Association (March 6, 2007) (Panel: Shontz, Gannon, Vergagni).
The homeowners (HO) filed a complaint challenging a finding by the homeowners association (HOA) that their white-cladded deck violated the community rules by not matching the trim color of the house, which was beige.They argued that the deck matched the trim color of their kitchen bump-out, which was white, and also matched the appearance of the vinyl-clad fence surrounding the community that had been recently installed by the master association to which the HOA belonged. Finally they argued that beige trim was not available at the time they built their deck.The hearing panel found that the HO was in violation of the rules because they did not apply for and receive permission to use a white cladding, as required by the community rules. There was evidence to show that beige-colored cladding was available at the time the deck was installed, and also that the fence was installed by the master association, not by the HOA, and therefore did not represent any change in the HOA's rules concerning additions to member units. Therefore, the panel ordered the HO to either repaint or replace the white cladding with beige, or to repaint the house trim paint white so that it would match the deck cladding.
The HOA requested $5605 in attorney's fees. The panel noted that under Section 10B-13 of the County Code it could only award such fees if the losing party had engaged in misconduct during the course of the case or if the HOA rules required the payment of attorney fees. In this case the HOA rules specifically stated that if the HOA sued to enforce its architectural rules, it could charge the offending member with the attorney's fees necessary to prosecute the case. The panel held that this was sufficient to meet the requirements of Section 10B 13. However, the panel also ruled that the amount requested was not reasonable, because the HOA had caused part of the problem by having vague standards, by not requiring the HO to provide color samples in his deck application, and by failing to hold a proper board meeting to consider the several alternative solutions proposed by the HO during mediation. The panel also believed that the amount of the fee was excessive for a case of this nature. Therefore, the panel reduced to $2800 the amount of the attorney's fee that the Complainant was required to reimburse to the Respondent.