Updated Jan. 29, 2020
By Deborah Goonan, Independent American Communities
**Good news UPDATE! Kim and Jason Costa of Georgetown have announced that the ‘playscape’ lawsuit filed against them by their HOA neighbors has been dismissed.
Another mean-spirited, child-unfriendly lawsuit is creating a lot of negative attention for the Estrella Subdivisions of Georgetown, Texas. But this time, it’s not the HOA filing a lawsuit — it’s one of the neighbors.
The parents of three-year-old Colton Costa just learned their next door neighbors are suing them for installing a playscape in their back yard.
The family added the play scape to their back yard for their son this past summer. Colton suffers from Hurler’s disease, a terminal medical condition. Kim Costa tells Kate Winkle of KXAN that the family chooses to “live in the now,” while Colton is still able to enjoy active play outdoors.
According to the KXAN report, the Richard and Carole Gottleibs’ lawsuit claims the Costas failed to submit proper plans to the HOA’s Design Review Committee. The complaint also accuses the HOA of failing to enforce its own guidelines. The Gottleibs want the court to force the Costas to remove their play structure.
HOA approved the back yard play scape
Colton’s mother, Kim Costa, also tells KXAN news that Estrella Homeowners Association reviewed and approved their request for the 14-foot tall structure. The HOA confirms this to be the case.
Thankfully, most of the Costa’s neighbors fully support their right to keep Colton’s play structure. They’ve expressed that outpouring of support by posting dozens of signs and pink hearts on the family’s front lawn, in full view of TV cameras — and KXAN’s local, national, and global viewing audience.
It seems that the Gottleibs are only people who want the play structure removed.
In deed restricted neighborhoods, all it takes is one neighbor to make a stink
You’ll find several other posts on IAC about HOAs suing homeowners over play structures for their children.
What makes this story different is that the lawsuit is initiated by a single homeowner member of the HOA. Technically, this lawsuit is based upon the underlying covenants, conditions and restrictions (CC&Rs) that govern the planned community.
Here’s the important point for readers to understand: even in the absence of an HOA, wherever CC&Rs burden properties, any one of your neighbors can sue you if, in their opinion, you run afoul of those CC&Rs.
Neighbor challenges HOA’s decision to allow play structure
In this case, Colton’s next door neighbors simply don’t want to see his play structure. The Gottleibs want it completely screened from view.
So, through their attorney, they are attempting to use Estrella Subdivisions’ CC&Rs and design standards to make their case that the playscape it is too tall. Therefore, they argue, it must be taken down.
If, in fact, the HOA did not follow their own CC&Rs and guidelines, does this open up the HOA, its board, and its design review committee to liability?
Maybe. The HOA might be forced to enforce their playscape height restriction rule, even if they would rather not.
Why can’t the Costa’s screen the playscape from view?
Well, according to Kim Costa’s Facebook post, the homeowners tried to get Estrella HOA to approve a privacy fence instead of a wrought iron fence. But the HOA turned down their request.
The more rules and restrictions, the more complicated it gets!
No Constitutional or consumer review for CC&Rs
Under U.S. and state law, CC&Rs are a legal contract between and among property owners. But, unfortunately, the law does not specifically require CC&Rs to be reasonable, fair, flexible, or compassionate.
And, because most CC&Rs are written for the benefit of real estate developers (land owners or investors), these contracts tend to be very one-sided, unjust, and difficult for homeowners to change.
Landowners can write restrictions and covenants, and make them “official” by filing them with their County recorder’s office. Yet no government agency reviews CC&Rs to ensure that contractual terms are Constitutional, fair, or reasonable.
Courts often enforce CC&Rs, no matter how petty
For example, the court can, and often will, uphold petty CC&Rs requiring proper trash can concealment, timing for display of holiday decorations, or allowable paint colors for your front door.
Note that both U.S. Fair Housing Acts and the Americans with Disabilities Acts protect people with disabilities from discrimination, and that these laws classify most chronic illnesses as disabilities. (Including Colton’s Hurler’s disease)
The bottom line is that property owners often bear the financial burden of challenging the validity or enforceability of CC&Rs in court.
What can homeowners do to prevent CC&R disputes and lawsuits?
Theoretically, neighbors can vote on amending (changing or deleting) offensive or unpopular covenants or restrictions.
However, most CC&Rs require at least two-thirds of all property owners to vote in favor of any amendment. Similar requirements apply to any property owner action to dissolve the entire set of CC&Rs or HOA.
It’s a difficult process. One that requires most property owners in the neighborhood to work together toward a common goal.
When there’s a homeowners association to enforce the CC&Rs — there usually is — property owners must also follow election and voting procedures, as spelled out in HOA bylaws.
Property owners need a better solution
In a small community, concerned neighbors can go door-to-door to campaign for change. It’s challenging, but possible to take action.
However, in large communities, owners often discover they are unable to communicate with all of their neighbors, let alone convince them to cast a vote on CC&Rs amendment or dissolution.
Even worse, if a developer still owns a lot of property in the community, it can be mathematically impossible for the real homeowners to cast enough votes in their favor.
Because the CC&Rs amendment process is so difficult, and litigation is very costly, property owners need an impartial advocate or regulatory agency to assist them in challenging questionable, illegal, or unjust CC&Rs.
Likewise, residents of deed restricted property need a consumer advocate to help protect them from frivolous lawsuits, whether filed by their HOA or a nasty neighbor. ♦
Georgetown family faces lawsuit over playscape for terminally-ill son
by: Kate Winkle, KXAN
Posted: Jan 20, 2020 / 12:37 PM CST / Updated: Jan 21, 2020 / 12:15 AM CST
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