Case No. 756-G, Decoverly IV Townhouse Association, Inc. v. Robert Rubin, (January 31, 2006) (Panel: Stevens, Vergagni, and Kivitz)
The Homeowner Association's (HOA) Declarations provide that no exterior addition, change, or alteration can be made by a homeowner (HO) until the HO's complete plans have been submitted to, and approved in writing by, the Board of Directors acting as the Architectural and Environmental Control Committee (AECC). The Declarations also state that it is prohibited to remove or alter any windows until the complete plans have been submitted to and approved in writing by the AECC. In June 2003 the AECC added a specific prohibition to the architectural guidelines that forbade window air conditioning units and any other "protrusions" from the home. Units installed before August 2003 were allowed to remain in place until July 2004. [Therefore, some approved window air conditioners had been permitted in the past.] The HOA filed a complaint with the Commission, alleging that the HO had violated the rules by installing a combination heater/air conditioner in one of his windows without permission.
The HO replied that the room in question had inadequate cooling and heating. He also argued that similar systems existed at the time he installed his. He also argued that the amendment to the architectural guidelines was evidence that the Declaration prior to June 2003 did not require application and approval to install a window heating/cooling system.
The Hearing Panel ruled in favor of the HOA. It held that the recent amendment to the architectural guidelines provided the additional information that window systems for cooling and/heating will not be permitted, but it did not change the preexisting requirement for written approval of an external alteration and that the HO's window unit was already governed by that rule. Moreover the HO never received permission to install his unit. The Panel ordered the HO to remove his window heating/cooling system within 60 days.