Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
We formally submitted scale drawings (prepared by a professional landscape company) of the changes that we wanted to make to the exterior landscaping of our house. They were approved by the HOA and we were told that we could begin construction, which we did. Everything was built per the drawings. The HOA is now saying that we have to remove a fountain that we installed next to our neighbor’s house as it was in violation of the CC&R’s concerning use of the easement. The HOA says it was our responsibility to ensure compliance with the CC&R’s. We claim that a fountain is not permanent and it does not “unreasonably” limit access to our neighbor’s side of the house if needed to maintain it. The fountain is made out of cinder block and concrete and is free standing. It is not structural to anything else and it is a key design element of the entire landscape project. Does the HOA have any responsibility/liability in their formal approval of our plans without conditions and their now deciding that it does not comply with the CC&R’s?
That’s a great question which I do not know the answer to. If you were dealing with a government agency (city, county, etc.), the answer – surprising to many – is no. If a city grants you a permit that’s inconsistent with the law, you don’t have the right to build according to the permit. In fact, even if you’ve already built, you can be required to change it to comply with the law, at your expense.
I don’t know whether that kind of indemnity applies to an HOA, but I would certainly press the matter. Let them explain to you why they aren’t liable for your change costs.
