The homeowners (HO) disputed the right of the homeowners association (HOA) to require them to remove a fence and adjacent plantings because the HOA had approved them in advance and thereby waived its right to claim they were a violation.
The evidence at the hearing showed that the HOA Declaration prohibited fences that extended past the rear building line of any home; that in August, 1990 the HO applied for permission to construct fences along the side of his property, which application included a not-to-scale drawing of the locations of the fences; the HOA at this time was controlled by the developer; the HOA approved the application; the HO built the fence, and by March, 1991, the HOA was aware that the fence as built extended beyond the rear property line of the HO's house. In October, 1990, however, the developer transferred control of the association to the homeowners. In March, 1991, the HOA notified the HO that the fence was in violation of the rules. The HO requested a special meeting of the membership to change the covenants in order to permit side yard fences, but the HO's amendment did not pass. By January, 1992, the HO had not changed his fence in spite of repeated requests from the HOA and the complaint followed. The HO testified that when he bought his house he did not receive a copy of the Declaration and that the documents he did receive did not prohibit side yard fences.
The hearing panel held that the Declaration was properly recorded in the land records and that the HO "is therefore subject to the recorded Declaration regardless of whether or not [he] received a copy of it."
The panel further held that the HOA waived its right to order the HO to remove his fence by approving his August, 1990 application, and therefore the HOA "is estopped from enforcing the provisions of the [Declaration]" that prohibit side yard fences, citing the case of Speer v. Turner, 33 Md.App. 716 (1976). The panel found that the HO relied to his detriment on that approval by constructing the fence and extensive landscaping next to it. However, the panel held that this waiver only applied to the HO and did not prevent the HOA from enforcing the rule against any other homeowner, citing Kirkley v. Seipelt, 212 Md. 127 (1957).
The panel ordered the HOA not to require that the HO remove his side yard fence.