Homeowner goes down with his deck
Paul Nielsen, owner of Lot 64 in the Woodridge Escondido subdivision, wanted to build a 17-by-21-foot deck with a hot tub adjacent to his home in Escondido, north of San Diego.The codes, covenants and restrictions (CC&R) required that any structures be approved by the board of directors of the homeowners association or by the architectural committee. And indeed, Mr. Nielsen obtained approval from the architectural committee. CC&RsThe Woodridge Escondido CC&Rs, in addition to requiring prior approval of structures, gives each lot owner the use of a 5-foot side-yard easement, but prohibits the lot owner from installing “any permanent structure other then irrigation systems” in the side-yard easement area. A deck and hot tubNotwithstanding the restriction against “permanent structures,” the Woodridge Escondido Architectural Committee approved Nielsen’s deck and hot tub in the 5-foot side-yard easement area, and remarkably, even beyond the 5-foot area – into adjoining Lot 63.Of course, the owner of Lot 63 objected, claiming the deck and hot tub should not have been built in the 5-foot easement area, and worse yet, should not have been built beyond the 5-foot area into Lot 63.The association board of directors concluded that the architectural committee had erroneously approved the construction of the deck and hot tub. Duh. The board ordered both removed, offering to pay Nielsen the removal cost.Nielsen removed the portion of the deck that went beyond his 5-foot easement, and sued the association claiming, appropriately, that the architectural committee had approved the deck, and further contending the deck was not a “permanent structure.”The court rulesUltimately, the matter proceeded to the court of appeal. Nielsen argued it would be a hardship to remove the deck and hot tub. The court disagreed. The court then found the deck and hot tub to be a “permanent structure” precluded by the CC&R’s. Even I could have told you that.Nielsen argued there should be a “balancing of equities,” such that the hardship of removing the deck and hot tub should be balanced with the minor inconvenience to the owner of Lot 63. Indeed, there are “balancing of equities” boundary line encroachment cases, but the court found them inapplicable because the association had no legal authority to approve any permanent structure other then an irrigation system in the 5-foot side-yard easement.In the end, Nielsen lost and the deck and hot tub were removed.But that’s not all. Nielsen paid the association’s attorneys fees as prevailing party. This case should not have been litigated.Jim Porter is an attorney with Porter • Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at firstname.lastname@example.org or at the firm’s Web site, http://www.portersimon.com
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