Burton Stevens v. Elk Run Homeowners' Association, Inc.
Supreme Court of Wyoming
When Burton Stevens placed a portable hot tub on the deck of his townhouse, he was asked to remove it by the Elk Run Homeowners' Association. Stevens refused and Elk Run filed suit against Stevens to have the hot tub removed. The district court ruled in favor of the homeowners' association and ordered the hot tub removed. Stevens appealed.

Justice Kite
Facts
In 1993, a developer filed a Declaration of Covenants, Conditions and Restrictions (the covenants) and a plat for the Elk Run Townhouses development in Jackson. The covenants indicated [that] each townhouse was located on a separate lot, allowing for fee simple ownership of each townhouse by an individual owner. The covenants also established the Homeowners' Association and provided that the individual lot owners were members of it. The members were to elect a management committee to govern the affairs of the association.

The covenants defined "common areas"as areas "designated as such on the applicable plat(s) for the project." The plat identified decks, entryways, and parking areas as "limited common areas." Other applicable provisions of the covenants stated:

1. Certain Additional Restrictions. The following additional restrictions are applicable to the lots and common areas. Each reference to "owners" includes their tenants and invitees.

a. Keeping Outside Areas Clean and Sightly. The Owners shall not place or store anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for their storage. All owners shall keep their residences and their lots in a reasonably clean, safe, sightly and tidy condition. . . .

b. Obstructing Common Areas. Owners shall not obstruct common areas. Owners shall not place or store anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for such storage. . . .

c. Architectural Control. Except as otherwise expressly provided herein, no building, fence, wall, driveway, excavation or improvement of any kind shall be commenced, erected or maintained upon the property, nor shall any exterior addition to or change or alteration therein be made (including without limitation any closing in of a porch or balcony) by any owner other than Declarant, until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing by the Management Committee, as to harmony of external design and location in relation to surrounding structures and topography, and in relationship to the quality and appearance of the project.

Mr. Stevens acquired Lot 12 of the Elk Run Townhouses Addition in 1998. His warranty deed stated that the property was subject to "taxes, reservations, covenants, encroachments, conditions, restrictions, rights-of-way and easements of sight and/or record." After moving into his townhouse, Mr. Stevens placed a portable hot tub on his exterior deck. The Homeowners' Association requested that Mr. Stevens remove the hot tub from his deck, but he refused.

Discussion
Mr. Stevens argues that the district court erred by granting summary judgment in favor of the Homeowners' Association. He claims that the district court misinterpreted the covenants as requiring management committee approval prior to the placement of a portable hot tub on an exterior deck.

We turn first to Mr. Stevens' argument that the district court erred by determining that paragraph 12(g) (architectural control) applied to the placement of a portable hot tub on his deck. The district court held that, under paragraph 12(g), Mr. Stevens was required to secure management committee approval before placing the hot tub on his deck because the deck was an improvement to the townhouse unit and placement of the hot tub amounted to a change and alteration of the deck.

We do not agree with the district court's conclusion on this issue. When we read paragraph 12(g) in its entirety and within the context of the whole declarations document, we believe that the terms "alteration" and "change" clearly and unambiguously denote a degree of permanence. The declarant included "closing in of a porch or balcony" as an example of the type of alterations or changes which fall within the paragraph 12(g). The paragraph also specifically refers to buildings, fences, walls, and driveways. Each of these examples is a permanent and enduring modification to the premises Placing a portable hot tub on a deck does not affect the structure of the deck or townhouse. The hot tub could be moved by simply unplugging it and draining the water. Consequently, a portable hot tub is not the type of permanent alteration or change addressed by the plain language of paragraph 12(g). The district court's decision to the contrary was incorrect.

The district court also relied on paragraphs 12(a) and (b) of the covenants in concluding that management committee approval was required before the hot tub could be placed on the deck. Paragraphs 12(a) and (b) address keeping outside areas clean, sightly, and free of obstructions. Owners are prohibited from placing or storing "anything within the common areas without the prior written consent of the Management Committee or its designee except in a facility specifically designated or approved for their storage."

Mr. Stevens claims that paragraphs 12(a) and (b) do not apply because his deck is designated on the plat as a "limited common area" rather than a "common area." The plain and ordinary meaning of the term "limited common area" is an area reserved for an owner's exclusive use, but subject to observation by others and, consequently, regulation by a homeowner's association. Clearly, the grantor intended to include limited common areas like decks, entryways and parking areas within the regulation of paragraph 12(a) and (b). The obvious purpose of the provisions is to keep any areas that could be observed by the general public and other townhouse owners neat, orderly, and free of obstacles. Therefore, we hold that paragraphs 12(a) and (b) apply to decks.

CRITICAL THINKING ABOUT THE LAW
Despite the effort homeowners' associations put into specifying what can and cannot be done on common areas or limited common areas, disputes about whether particular actions by homeowners are in conformity with the rules governing the residents or the homeowners are common. The courts, as in this case, pay close attention to the provisions in the agreement signed by the homeowner at the time of purchase.

1. What reasons does the court use in this case to find that the district court partially erred in its finding of summary judgment for the plaintiff?

Clue: Look at the portion of the decision where the court discussed the contents of paragraph 12(g).

2. Could Stevens have avoided trouble by placing his hot tub outside the sight of the other homeowners?

Clue: What is the content of 12(a) and (b) that Stevens violated?