In the case of Arcadian Shores Single Family Homeowners Association, Inc. v. Cromer (May 17, 2007), the SC Court of Appeals recently held that a homeowners association could not enforce a restrictive covenant requiring fence construction approval, and also ruled that a restrictive covenant prohibiting mobile homes could not prohibit parking of motor homes on the property.

During the trial, the trial court found that the homeowners association had an extensive history of not requiring all members to submit plans for approval for fence construction.  The court also found that photographs from the neighborhood showed no common scheme among the fences.  The court held that because of the lax history of enforcement and absence of a regulatory scheme for fences that the homeowners association waived its right to enforce the restrictive covenants pertaining to fences.  As an interesting aside, the homeowner had submitted a plan to the homeowners association that had been approved; however, she ultimately built a fence to different specifications. 

The homeowners association also sought to enjoin the homeowner from parking a trailer and motor home on the property within view of the street.  The court held for the homeowner on the grounds that restrictive covenants prohibited mobile homes and NOT motor homes.  The court strictly construed the covenants, and refused to hold that the intent and purpose of the prohibition of mobile homes included motor homes.

Lessons learned:
-Community associations should always require approval for construction, landscaping and any other improvements that require the community association's approval, or else risk waiving the right to do so in the future;
-Community associations should review the restrictive covenants to ensure that the documents are clear and specific as to what activities and improvements are restricted as the community association and should undertake the process for amending the restrictive covenants if necessary; and
-Community associations  enforcing restrictive covenants should make sure that a common scheme exists so the enforcement cannot be deemed arbitrary.

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