• W. Cory Reiss

The grass is always greener when it's artificial turf.

Updated: Apr 27

As spring ages toward summer, I’m thinking about my lawn and how thankful I am that my kids are finally old enough to do all the mowing for me.


That’s one upside to the passage of time.


Thankfully, though, I’m not subject to the draconian rules of an aesthetically obsessed homeowners association, as my lawn is still mostly a collection of weeds whether it’s properly mowed or not.


Anyone who's ever done battle with an HOA, or considered it, should heed the tale of one Wilmington family that went to war with its association over how to maintain its front yard — a case that recently went all the way to the North Carolina Court of Appeals and cost at least a quarter million dollars in attorney fees that the HOA likely will try to foist on the transgressing owners.


The expensive legal lesson for anyone in an HOA is this: If your association says “no” and has followed minimal rules for putting its foot down on your exterior design plans, you’re probably stuck with design by committee.


The dispute with the Landfall Council of Associations, an HOA, began in 2015 when the homeowners decided they had tried enough times sodding their front yard, which is shaded by large trees, only to watch their curb appeal wither and die. HOA regulations dictate that all grass areas must be sodded.


In addition to the rules in this gated community of otherwise pristine HOA-enforced landscaping, one might imagine judgment radiating from neighbors blocks away.


The homeowners proposed to solve this problem by installing 2,400 square feet of artificial turf. Yes, fake grass. They applied for permission — required for essentially any change to existing landscaping — but the Landfall Architectural Review Committee declined to approve it. The board suggested they propose an alternative landscaping plan.


The homeowners, taking the position that artificial turf falls within the definition of “sod,” simply began to install the fake stuff instead. This met with a less than cordial response from the HOA, which allowed the owners to appeal and then began to impose $100-per-day fines for altering the landscape without permission. State law allows HOAs to impose such fines. When the fines accumulated to $14,900, the HOA filed a lien on the house.


The homeowners sued for a declaration that artificial turf is sod, and therefore the board’s actions were unlawful, and they also sought damages. The board filed counterclaims to collect the money through judicial foreclosure and sought an injunction requiring the artificial turf be forever banished from the realm.


Two Superior Court judges, in successive hearings, dismissed the owners’ damages claims and entered a declaratory judgment that artificial turf is not sod. Recovery of the fines was left for trial, but a third judge went ahead and awarded the fines and partially granted the HOA’s request for attorney’s fees, awarding $50,000 in fees to the victor.


The owners appealed, but the Court of Appeals didn’t think much of their case. It gave full effect to the HOA’s bylaws and requirement that the committee must give prior written approval to “any clearing, grading, landscaping or construction.” The Court didn’t need to decide if artificial turf fit the definition of sod because the owners had altered landscaping without prior approval, a violation of the rules, and the committee had articulated a basis for its rejection of the plan.


But there’s more bad news for these homeowners.


The Court of Appeals held that the third judge wasn’t allowed to enter a judgment on the fines and foreclosure issues for the HOA because a previous judge had already denied a motion to decide the same issues in the HOA’s favor. One judge can’t overrule another judge of the same level. And because those issues weren’t properly decided, the HOA was not a prevailing party to whom the third judge could award $50,000 in attorney fees under the applicable statute.


Well, that’s good news for the owners, right?


Not when the award was a fraction of the $246,000 in fees the HOA had racked up enforcing its liens.


Just take a moment to marvel at the amounts spent by a well-heeled HOA to hold at bay the evils of artificial turf.


If the homeowners lose the case against them for the fines, another judge will be free to hit them with the full freight it took to get a verdict — including the attorney fees accumulating from the appeal onward, which no doubt have been substantial so far.


Everyone wants a nice lawn. But it might have been cheaper for everyone if the HOA had demanded gold leaf instead.

© 2020 by Reiss & Nutt PLLC.

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