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What happens in a community when homeowners do not follow restrictive covenants?
AUTHORRichard Siegler and Dale Degenshein
PAGE #pp. 50-51
Does a homeowner in an HOA have license to do what they like to their house?
What happens in a community when homeowners do not follow restrictive covenants? The court reviewed just that question in Bluff Point Townhouse Owners Association v. Kapsokefalos.
Lisa Kapsokefalos and her husband own a townhouse in the Bluff Point community in Plattsburgh, New York. The homeowners pay membership dues to Bluff Point, which provides services for the benefit of residents. There was a long history of litigation between the parties, with the Kapsokefaloses refusing to pay monthly dues. There were two prior actions against the couple as a result of their failure to comply with certain restrictive covenants and pay dues. The second of these two actions ended with a decision and order issued on January 6, 2014, awarding the association judgment for the relief requested in the complaint. Specifically, the Kapsokefaloses were directed to pay the monthly dues outstanding from August 2007 to December 2013. The defendants complied, but eventually, after another personal dispute with the board, they stopped paying monthly dues and eventually owed $2,900 for those dues outstanding from January 2014 to June 2016.
In June 2016, Kapsokefalos painted a sign on the garage door of her townhouse that declared: “Property Rights Matter!!!” According to a neighbor, the sign was written in large letters, and appeared to have been spray-painted to give the appearance of graffiti. In addition, Kapsokefalos painted with red paint the trim around the garage, her front door, and the second-story windows of her townhouse. But red violated the color scheme previously approved by Bluff Point.
Bluff Point sought a preliminary injunction as a result of the painting of the garage sign and the trim to non-conforming colors. It also demanded that the Kapsokefaloses be required to cut back or trim overgrown vegetation in the front and rear of the unit.
The decision discussed here deals primarily with Bluff Point’s request for a preliminary injunction. An injunction is an equitable remedy, and because it is interim – i.e., requested at the beginning of the action rather than at the end – there is a heightened burden on the one demanding the relief. Thus, the court explained that, in order to obtain a preliminary injunction, Bluff Point would have to show that it is likely to succeed on the merits of its claims for permanent injunctive relief; that there will be irreparable harm to Bluff Point if the injunction is not granted; and that the equities of the situation balance in Bluff Point’s favor.
The court first noted that, because of prior litigation between the parties, Bluff Point would probably succeed on the merits of its claims, meeting the first element for a preliminary injunction. However, the court explained, whether Bluff Point established irreparable harm and a balancing of the equities differed on each item it sought to enjoin.
The court took each of the issues separately. It concluded that the painting of a graffiti-like sign on the garage door was unsightly and could affect surrounding property values. The Kapsokefaloses, however, submitted proof that Lisa had painted over the sign. The court stated that, given her history, “it is not inconceivable that [she] might repeat the conduct.” It thus ordered that during the litigation, Kapsokefalos would not be permitted to paint or letter the exterior of the premises.
As to the trim paint, the court acknowledged that the color was non-conforming. However, the court looked specifically to the “irreparable harm” prong of the preliminary injunction test. It concluded that the paint color did not, in and of itself, rise to the level of harm that would warrant the grant of a preliminary injunction. Presumably, the court did not believe that the non-conforming color would affect property values or otherwise negatively affect other members of the community. Although it did not order that Lisa Kapsokefalos repaint, the court did direct that she could not further paint the exterior of the townhouse with a color not approved by Bluff Point.
The last issue addressed by the court was the vegetation in the front and back of the Kapsokefaloses’ house. The photographs submitted did not, in the court’s view, create a condition that was so unsightly or dangerous so as to establish the irreparable harm required to allow the court to grant a preliminary injunction. This was, in part, because there can be no finding of irreparable harm if money damages are available to resolve the matter. Accordingly, the court noted, to the extent Bluff Point had the right to maintain the lawns, it could trim the vegetation and then seek monetary damages separately.
It appears from the decision reported here, and from other cases concerning these parties both at the lower court and the appellate level, that the two sides continue to litigate in part because of a personal incident. Where there are personal disputes in an association setting, it is important that the parties try to keep them in perspective. Homeowners should not take action merely to flout the rules, nor should a board implement rules solely directed at an owner as a result of a personal animus. Condominiums, cooperatives, and homeowners associations require people to live together and comply with the rules, which are presumably implemented for the benefit of all owners. While the motion discussed here was a “preliminary injunction,” we suspect that, if the matter proceeds to conclusion, Bluff Point would probably receive the injunctive relief it seeks, assuming the rules were promulgated in accordance with Bluff Point’s governing documents. This is because it has long been the law that when one buys into a community such as a cooperative, condominium, or homeowners association, one submits to the governance of that community.