Association's Silence on Construction Permit Review Construed as Acceptance

Architectural Control: An association will lose its ability to limit construction projects in a community if it chooses not to assert its claims for years and the defendant relied upon their silence.

Huntington Park Condominium Association, Inc. v. Van Wayman (No. 13-05-00464-CV, Tex. App. Ct., February 28, 2008) establishes the principle that an assocation will lose its ability to limit construction projects in a community if it chooses not to assert its claims for years, and the unit owner relied upon the association's silence.

Kenneth Van Wayman owned a unit at Huntington Park Condominium. Before he purchased the unit, he sought permission from the condo association to enclose the patio area adjacent to the unit. The association's board did not reply to his submitted plans. Three years later Van Wayman enclosed the patio without further approval, and the association subsequently sued Van Wayman, asking the court to order him to remove the fence.

The trial court ruled in favor of Van Wayman, concluding that (1) Van Wayman's enclosing the patio did not cause imminent harm or irreparable injury; (2) the association ratified the enclosure by telling Van Wayman that the enclosure was acceptable a year before the suit; and (3) the association's claims were barred by laches.

The appeals court upheld the trial court's decision. Van Wayman prevailed both because he relied on the association's notice that the patio enclosure was acceptable and because the association did not respond to his initial request for approval. The association led Van Wayman to believe that he was permitted to enclose his patio, a factor that was fundamental to his purchase of the unit. The association's silence only furthered the notion that the enclosure was neither illegal nor disruptive to the community.

Furthermore, the association's failure to assert a claim, together with a lapse of time, prejudiced the association. The association was guilty of inaction because it was given notice of Wayman's plans prior to his purchase of his unit. Wayman completed the enclosure in 2003, and the association did not file the suit until 2005. The court noted that the association failed to perform the due diligence that was required within 30 days of the proposed plans by the community's declaration.