Homeowners say previous HOA board approved white paint for their deck 10 years ago
By Deborah Goonan, Independent American Communities
Omaha homeowners Mike and Sheila Lyons have joined forces with a third neighbor to defend their property rights in a lawsuit filed against them by their homeowners association.
The reason for the lawsuit, described by Sheila as “petty,” boils down to the paint color of their deck.
According to a report by Mike MicKnight of WOWT (6 On Your Side), in 2008, the Lyons painted their deck white, following written approval by the board-appointed architectural control committee in place at the time.
Last year the homeowners repainted their deck the exact same color, but the HOA objected, claiming that current standards require that all decks be of a natural wood tone. In the lawsuit, the HOA attorney says that the homeowners failed to obtain approval prior to repainting their deck.
The homeowners, their deck, and a copy of the notice from Westin Hills HOA can be viewed in the following report:
Homeowners sued over deck color
By Mike McKnight | Posted: Mon 5:50 PM, Feb 26, 2018 | Updated: Mon 7:21 PM, Feb 26, 2018
WOWT) — Three homeowners in a northwest Omaha neighborhood are being sued by their own townhome association. It’s not about the condition of their decks but the color.
While the Lyons like to entertain on their deck it’s now caused them to be served. A lawsuit filed against the Lyons by the Westin Hills Four Townhome Association demands their deck be a natural wood color instead of white.
Mike Lyons said, “Does this detract from the home? Does it make it stand out like sore thumb? No. Does it add value and grace to this house? Yes, it does.”
The lawsuit claims the Lyons didn’t obtain approval of their deck color but Sheila says she did and it’s in black and white. She cites permission in writing from a different board 10 years ago. Sheila Lyons/homeowner said, “Each time I paint it white, do I have to get approval each time? It’s the same color and nothing’s changed in 10 years.”
The Lyons attorney answered that enforcement of the color covenant is arbitrary. Out of 250 homeowners in the association three are being sued.
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Westin Hills Four Townhomes Association is managed by PJ Morgan Real Estate, a firm that also buys. sells, leases, and manages multiple properties in the Omaha area, including 72 HOA and condo communities.
According to Westin Hills’ Articles of Incorporation, the association was established in 1998, for the purposes of providing maintenance services, and to enforce restrictive covenants and standards of architectural control. The association is organized as a non-profit mutual benefit corporation of members (lots) with no common areas.
In January of 2001, CC&R amendments were filed with Douglas County. Those amendments shifted certain maintenance responsibilities and costs from townhome association to homeowners.
While the HOA assessment of $105 per month covers the cost of trash pickup, painting the exterior of each home, plus lawn, shrub, tree maintenance, and snow removal, the owner is responsible for maintaining the underground watering system of their landscape, and any additional personal improvements to their landscape, including their decks.
Each homeowner is also responsible for maintenance and replacement of the property’s roof, driveway, sidewalk, doors and windows, and all other exterior maintenance. In fact, the CC&Rs provide that, if the homeowner fails to maintain their property, the HOA has the right to enter the property to correct any defects, and then assess the homeowner for the cost.
Reading further, the CC&Rs are somewhat vague as to whether or not a homeowner must receive prior approval when repainting the same color that was approved by the board several years earlier.
To a non-attorney, the amended provisions of Westin Hills CC&Rs seem to say that the homeowner only needs to obtain approval of the Architectural Control Committee if the exterior color is changed or altered. So why doesn’t the Lyons’ 2008 written approval for a white painted deck suffice?
According to a previous WOWT report, this dispute has been simmering since last summer, and the HOA has now decided to spend the association’s money to sue three homeowners, apparently just to prove a point.
The lawsuit against Lyons and their neighbor coincides with the election of a new board, and a contract with a new on-site property manager, Ryan Liberty. (See January 2018 annual meeting minutes.)
Nebraska state law grants HOA boards the authority to levy fines for violation of the governing documents, and those fines are included as part of the assessment lien. An HOA lien in Nebraska does not take priority over a first mortgage. But an HOA can foreclose on a member’s home in the same manner as a lender can foreclose on a mortgage lien.
When the management company for an HOA happens to be a real estate corporation that buys, sells, leases, and manages multiple properties, the manager is privy to inside knowledge about the financial position of each property owner. Obviously, the manager plays an active role in litigating against homeowners for alleged violations of covenants, restrictions, rules, regulations, or architectural standards.
However, Nebraska HOA law does not explicitly prohibit conflicts of interest, such as allowing a board member or manager to purchase a home at an HOA foreclosure auction, even if the purchaser derives a personal benefit from acquiring the property.
CC&Rs for Westin Hills Four Townhome Association