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HOA hit for $77K after tearing out man’s wall

BA Frederick County landowner has prevailed against his homeowners association in a case that weighed just how far an HOA is allowed to push restrictive covenants. The court awarded $77,344 in damages and fees after acknowledging the HOA exceeded its authority by tearing out a wall built in the property owner’s easement.

The case is a clear message that homeowners associations have limited authority, according to Winchester attorney Thomas M. Lawson, who represented the property owner.

“HOAs can do a lot, but they can’t go on someone’s property and start ripping,” he said.

Lawson’s client, Hylton Matthew Walker, had purchased a plot of land in the Great North Mountain Wilderness Area subdivision in the early 2000s. The land had been prepared for a house, Lawson said, but at the time of the conflict nothing had been built on the property except for part of a septic system.

Under the Great North Mountain Phase II Homeowners Association’s restrictive covenants, each property in the subdivision was granted a 60-foot right of way easement, which includes an “access trail” for vehicles.

Over the course of several years, Walker spent a considerable amount of time and effort improving the portion of the shared roadway that ran through his property. He cleared brush and widened the trail for better vehicle access. He also removed a number of large stones and used them to build an eight-foot high retaining wall to hold back the elevated part of his property and prevent erosion on the access road.

The improvements enhanced the value of the property, Lawson said, which made the HOA’s actions “somewhat ironic.”

In a July 2008 letter, the HOA’s board of directors advised Walker that the retaining wall encroached the right of way. The HOA proposed arranging to have the wall removed at Walker’s expense.

The board of directors held no hearing or formal meeting, something Lawson says they were required to do under the HOA act.

According to Lawson, Walker had a brief phone conversation with an HOA representative. He made plans to stop by the HOA office on the way home from work in order to discuss the issue, but by the time he arrived, the representative had left for the day.

Without further notice, the HOA board hired a construction company to tear out the rock wall, stating they were authorized to do so under the restrictive covenants. Shortly thereafter, Walker received the bill.

Walker refused to pay, and in January 2010, the HOA obtained a Warrant in Debt in general district court.

Walker appealed the judgment to the Frederick County Circuit Court. He also filed a complaint against the HOA, asking the court to declare that the HOA acted outside its authority under the restrictive covenants, which constituted a trespass.

The property association filed countersuit, alleging breach of contract and violation of the Property Owners’ Association Act (Va. Code § 55-508).

At trial before Judge Clifford L. Athey Jr., Walker testified that the value of his stone wall was $20,000.

In addition to tearing down the retaining wall, the construction company had installed drainage culverts in the right of way. According to Lawson, the culvert was placed in a spot that would cause silt to flow into the property’s septic drain field.

These drain fields are important in rural communities, Lawson explained. Properties that don’t have access to the city sewer must rely on a system that uses septic tanks, pipes and drain fields to process sewage. It’s a delicate system that requires a certain type and quantity of soil, and can be easily compromised by erosion and silt deposits.

At trial, Lawson called on an engineer, who testified that the culvert needed to be stopped in order to preserve the drain field.
Walker claimed it would cost $8,500 to return his property to its original condition.

In its counterclaim, Great North Mountain sought $27,700 in reimbursement. The HOA was represented by Nate L. Adams III of Winchester, who could not be reached for comment.

Both parties asked for attorneys’ fees and costs under Virginia Code § 55-515.

In a written decision, the court concluded that the homeowners association exceeded its authority under the restrictive covenants (VLW 013-8-087).

“Nothing in the Restrictive Covenant gives Great North Mountain authority to tear down retaining walls or to install drainage culverts and charge owners with the cost of doing such work within the Right-of-Way,” Athey wrote.

A final order, entered in June, awarded compensatory damages of $28,500 and attorneys’ fees of $48,844 to Walker. According to Lawson, he plans to rebuild his wall.

Lawson said the takeaway from the case was that homeowners associations need to go through the proper channels before taking action. “They ought to get court approval first,” he said.

VLW 013-8-087

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