We are residents in a town home community, under the governance of a Homeowners Association (HOA), in Pennsylvania. We are responsible for mowing our twenty feet of land, both front and rear. Although, the common area outside this area is not our issue, we mow this area routinely, to help keep landscaping cost down. At first, we kept the mower and gas cans in the basement, as most homeowners do. Because of asthma this was became a health concern.
After contacting the previous management company, we received the verbal "ok" to install a small plastic storage unit for the mower and gas. The size of the storage unit is about 2.5'W X 3.5'L X 3.0'H. The management company indicated that if the board had a problem with the storage unit, we would be contacted. We had "passed" the yearly assessment with "No Issue", until following year, when the board changed the bylaws and Covenants Conditions and Restrictions (CC&R). Further discussions, regarding "grandfathering" of the storage unit, have proved futile.
With the help of an attorney, we attempted to compromise the situation and we agreed to plant a shrub, "which will shield" the storage unit from view. We chose a Golden Arborvitae, a shrub which grows to about 3-4 foot height and width at maturity. None of the local landscaping nurseries stock a mature Golden Arborvitaes. Because this shrub was immature, approximately 20 inches, we supplemented the planting with tomato and pepper plants.
We received letter indicating that we were in violation of the "spirit and intent" of the agreement. At first, the HOA indicated that we made "no planting". They confused the tomatoes and pepper plants used to help shield the storage unit, until the planting matured. They even admitted they did not view the planting up close for verification.
Subsequently, according to the HOA, the violation was based on the fact that the bush did not, at the time of planting, shield the storage unit from view. Their interpretation of the agreement required immediate gratification. However, it was our contention that this shrub was chosen because it has a growth rate of approximately twenty five inches per year. This growth rate would have completely shielded the storage unit in less than one year. This shrub, at maturity, would also not violate the current rules regarding the maintenance and height of bushes.
Again, in an attempt to compromise, we made another planting of elephant grass, which was also rejected by the HOA. A third planting of two regular Arborvitaes was finally accepted by the HOA. The HOA now maintains their original contention of violation and the resulting $50.00 fine. We have indicated to them our intent not to pay this fine. We question its legality, as the unit should have originally been grandfathered and we were willing to compromise even with this in mind. We also contend that their interpretation of immediate gratification was unrealistic.
A recent stroll through my community has revealed many of these storage units throughout the community. They are of varying sizes and colors. In particular, one home contains a unit slightly larger than mine, but in the same configuration. That is to say, it is at the end of the adjoining fence line, just as ours is located. However, the green top of this unit does also violate the "new" regulations concerning these units. This stroll has lead us to believe that we are being singled out and unfairly treated in this matter.
Both lawyers I have contacted don't want to take on the mighty association. As this situation, seems to be a private contract, between us and this association.
Is it possible for us to go to small claims court, to reclaim the cost of these shrubs and any legal fees incurred, due to contesting of the fine, based on Breach of Contract or Breach of Duty? I think this is a breach of contract because they have unfairly singled us out for this situation, while they have allowed others in the community to install the units in many other "illegal" configurations".
We would appreciate any help or counsel offered. Please feel free to respond with questions, to add clarification, if needed. Thanks.
Rob
After contacting the previous management company, we received the verbal "ok" to install a small plastic storage unit for the mower and gas. The size of the storage unit is about 2.5'W X 3.5'L X 3.0'H. The management company indicated that if the board had a problem with the storage unit, we would be contacted. We had "passed" the yearly assessment with "No Issue", until following year, when the board changed the bylaws and Covenants Conditions and Restrictions (CC&R). Further discussions, regarding "grandfathering" of the storage unit, have proved futile.
With the help of an attorney, we attempted to compromise the situation and we agreed to plant a shrub, "which will shield" the storage unit from view. We chose a Golden Arborvitae, a shrub which grows to about 3-4 foot height and width at maturity. None of the local landscaping nurseries stock a mature Golden Arborvitaes. Because this shrub was immature, approximately 20 inches, we supplemented the planting with tomato and pepper plants.
We received letter indicating that we were in violation of the "spirit and intent" of the agreement. At first, the HOA indicated that we made "no planting". They confused the tomatoes and pepper plants used to help shield the storage unit, until the planting matured. They even admitted they did not view the planting up close for verification.
Subsequently, according to the HOA, the violation was based on the fact that the bush did not, at the time of planting, shield the storage unit from view. Their interpretation of the agreement required immediate gratification. However, it was our contention that this shrub was chosen because it has a growth rate of approximately twenty five inches per year. This growth rate would have completely shielded the storage unit in less than one year. This shrub, at maturity, would also not violate the current rules regarding the maintenance and height of bushes.
Again, in an attempt to compromise, we made another planting of elephant grass, which was also rejected by the HOA. A third planting of two regular Arborvitaes was finally accepted by the HOA. The HOA now maintains their original contention of violation and the resulting $50.00 fine. We have indicated to them our intent not to pay this fine. We question its legality, as the unit should have originally been grandfathered and we were willing to compromise even with this in mind. We also contend that their interpretation of immediate gratification was unrealistic.
A recent stroll through my community has revealed many of these storage units throughout the community. They are of varying sizes and colors. In particular, one home contains a unit slightly larger than mine, but in the same configuration. That is to say, it is at the end of the adjoining fence line, just as ours is located. However, the green top of this unit does also violate the "new" regulations concerning these units. This stroll has lead us to believe that we are being singled out and unfairly treated in this matter.
Both lawyers I have contacted don't want to take on the mighty association. As this situation, seems to be a private contract, between us and this association.
Is it possible for us to go to small claims court, to reclaim the cost of these shrubs and any legal fees incurred, due to contesting of the fine, based on Breach of Contract or Breach of Duty? I think this is a breach of contract because they have unfairly singled us out for this situation, while they have allowed others in the community to install the units in many other "illegal" configurations".
We would appreciate any help or counsel offered. Please feel free to respond with questions, to add clarification, if needed. Thanks.
Rob
