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# 136-O, D'Costa v. Cinnamon Woods Homes Association (June 10, 1993) (Savage, Fox, Sullivan)

The homeowner (HO) complained that his homeowner association (HOA) had improperly denied his request for an exception to a rule prohibiting the construction of split-rail fences.

The evidence at the hearing showed that when the HO bought his home, the lot included a split-rail fence constructed by the previous owner, apparently without permission from the HOA.  The HOA notified the HO that his fence was a violation of the rules and the HO then filed a request for an exception.  The HOA reviewed the request and denied it, but took no further action against him.  The HO then filed a complaint with the Commission.

The hearing panel ruled that the complaint was premature and must be denied without prejudice.  Since the HOA had not taken final action against the HO, including following its procedures for notice of violation and the right to a hearing before the HOA board of directors, all remedies and procedures had not yet been exhausted. [Editor's note: Section 10B-9(b) of the Montgomery County Code states that a party cannot file a dispute with the Commission "until the party makes a good faith attempt to exhaust all procedures and remedies provided in the association documents."]  The panel held that "[t]he complaining party must demonstrate that he/she has been injured due to action taken or failure to act by the Respondent Association, in order for the dispute to be a matter properly reviewed and decided by this Commission."  [Editor's note:  Section 10B-8(3) requires that there be a "dispute" between the parties.]