Covenant Lawsuit Judgement

In 2000 your association filed a suit in district court against one of our homeowners who installed a roof with materials that did not comply with our covenants. We asked the court to require that homeowner to remove that material and to replace it with material that complies with our covenants. This matter has been on the agenda of our board meetings for several months and a review of the matter was published in the September 2001 newsletter. The case was tried in late July of last year and the Judge, Gregory Frizzell, issued his ruling in late November, however, we did not receive the ruling until December 6.

We lost, but the Judge’s decision is limited to the 1993 covenant as applied to this particular case. Therefore, we cannot require that homeowner to replace his roof but we can continue to enforce our existing covenants. A copy of the judge’s ruling is available to any association member who wants one. It is a rather complicated decision and much of the result deals with the covenants that were put in place in 1993 and were changed in 1999.

Judge Frizzell decided that our interpretation of the 1993 roofing covenant was more restrictive than its stated intent. He held that the covenant did not preclude the use of composition roofing material and that the Association was unreasonable and arbitrary in its overly narrow, rigid and restrictive interpretation of the covenant. Once the Judge had come to this conclusion, a ruling in favor of the homeowner was obvious. The Judge criticized the Association for not consulting an attorney to obtain a legal opinion as to the meaning of our 1993 roofing covenant, ignoring the facts that 1) the 1993 covenant was written by an attorney with the specific intent of precluding composition roofing material and 2) prior to filing a lawsuit, we obtained a second opinion concerning our position.

The Judge made the point that Oklahoma courts do not look favorably on restrictive covenants and, if there is any ambiguity in a covenant, the courts rule in favor of the unencumbered use of the property. In a rather convoluted way, he managed to find an ambiguity in our 1993 roofing covenant.

By restricting his decision to this case, our ability to preserve our covenants has been upheld, but at a cost of considerable legal costs. We have spent approximately $14,000 and the homeowner has sued this association for his attorney’s fees in the amount of $29,100. The court will hear this matter in February. If the Judge does, in fact, award the full amount requested by the homeowner’s attorneys, the association may be forced to file bankruptcy or may be required to impose a special assessment to pay the judgement.