Homeowners’ Association Loses Case—Its Own Fault

by Roger Hughey

A 2008 Kansas Court of Appeals case shows the importance of homeowners’ associations following their own rules. In Falkner v. Colony Woods Homes Ass’n, the Association (HOA) had the power to enforce the Colony Woods covenants, including approval of plans for building alterations and building materials to be used. The covenants provided procedures for obtaining approval of plans.

The covenants prohibited any building alteration until HOA approved the plans, and required the HOA to approve or disapprove the plans or file suit to enjoin the alterations within 30 days of a request for approval.

The HOA notified homeowners in Colony Woods that it would allow certain types of materials to be used for roofing and that it had developed a particular form to be used by homeowners to obtain approval of a new or replacement roof. The homeowners were instructed to wait for approval before beginning work.

Without going through the approval process, Faulkners replaced the roof on their home but did not use materials specified by HOA. On the last day of roofing work, HOA told Faulkners their roofing materials were not approved and they needed to obtain approval of “alternative materials.” A week after completion of the roof, HOA informed Faulkners their roofing material was not approved. With the notice was a form for requesting an “exterior roofing material change.”

Faulkners returned the form the next day. After nearly three months, Faulkners’ attorney inquired whether the roofing materials had been approved. HOA said no and that it would take legal action. Faulkners sued first, seeking declaratory judgment. HOA counterclaimed for an injunction and damages. The trial court ruled for the Faulkners, allowing them to leave the new roof in place.

HOA appealed, arguing it had no duty to respond to Faulkners’ request for approval.

The Court of Appeals affirmed the judgment for Faulkners. When the HOA invited Faulkners to submit the form for approval after completion of the project, it was bound by the terms of the covenants to notify them of disapproval of the roofing materials within 30 days. By failing to respond within 30 days and failing to file suit to enjoin the homeowners in a timely manner, the HOA waived its right to approve the use of the roofing materials. The HOA lost its right to enforce its covenants because it did not follow its own requirements in the covenants.

(Article appeared in Adams Jones September 2009 Newsletter)