Falkner v. Colony Woods Homes Ass'n

198 P.3d 152, 40 Kan. App. 2d 349, 2008 Kan. App. LEXIS 203
CourtCourt of Appeals of Kansas
DecidedJuly 3, 2008
Docket98,627
StatusPublished
Cited by2 cases

This text of 198 P.3d 152 (Falkner v. Colony Woods Homes Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Falkner v. Colony Woods Homes Ass'n, 198 P.3d 152, 40 Kan. App. 2d 349, 2008 Kan. App. LEXIS 203 (kanctapp 2008).

Opinions

Green, J.:

Colony Woods Homes Association (CWHA) appeals the trial court’s interpretation of the Declaration óf Restrictions applicable to homeowners hving in the Colony Woods subdivision. On appeal, CWHA contends that the trial court erred in its interpretation of the homeowners’ restrictions. We agree. Nevertheless, because of its conduct, we determine that CWHA waived compliance with the homeowners’ restrictions. Accordingly, we affirm.

Michael and Nan Falkner own a home located in Colony Woods. CWHA operates Colony Woods undér a Declaration of Restrictions filed in 1975 with the Johnson County Register of Deeds. CWHA is responsible for enforcing compliance with the Declaration of Restrictions. Included are two provisions: one titled “Right to Approve Plans” (Section 7) and the other titled “Required Building Materials” (Section 9). Section 7 contains the following language:

“No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications and plot plan showing the location of such building have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision ....
“Upon any such request for approval the party requesting such approval shall submit simultaneously with said request the following documentation:
“(d) A fist of all exterior materials to be used which will include roof, masonry, siding and windows ....
“ ... In the event said Committee, or its designated representative, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the erection of said building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.”

Section 9 states: “Roofs shall be covered with wood shingles, wood shakes, slate or tile. Any building products which may come into general usage for dwelling construction in this area after the date of these restrictions shall be acceptable if approved in writing by die Architectural Control Committee.” The Architectural Control Committee (ACC) is established in Section 7 as a 5 member [351]*351group of homeowners which accepts requests for new buildings and alterations and approves the requests under the Declaration of Restrictions.

On December 20, 1998, the ACC disseminated a notice (Notice) to the homeowners of Colony Woods informing them that the ACC “will allow the GAF Grand Sequoia 40yr Weathered Wood color and Celotex Presidential shake 40yr Autumn Blend color as alternative material choices to the current Colony Woods Homes Associations Declaration of Restrictions, pursuant to the ‘other materials which may come into general usage in the area’ clause.” The Notice continued to explain that the ACC had developed a form for every homeowner to use if they were to “install [a] new roof or re-roof or alter their existing roofing materials.” The new approval process outlined in the Notice required the homeowner to fill out and sign the form, include a material data sheet and bid proposal, include a copy of the City of Lenexa’s Building Roofing Permit, and “await a written and signed response from [an] ACC member prior to ordering material or any work to begin.” The Notice specified that the ACC would then have 30 days to respond in writing to any request received. The letter concluded by providing a 2-week period for “comments, objections, or suggestions to the new rule on alternative roofing.”

On or about March 15, 2006, the Falkners completed the replacement of their wood roof with a laminate asphalt shingle roof. CWHA knew, on March 3, 2006, that the Falkners were using materials that did not comply with the Declaration of Restrictions. The Falkners took no action to obtain approval by the ACC before the installation of the new roof. Moreover, on the final day of construction, the Falkners spoke with a member of the ACC who told them that the roofing materials were not an approved product. The ACC member told the Falkners they needed to submit a request form for approval of alternative roofing materials. In a letter dated March 22, 2006, the chairman of the ACC wrote the Falkners telling them that the roofing material they were using had not been approved and that the ACC “will have to deny the use of this material, unless it can be proved that this [was] an approved roofing material.” Further, the letter included a request form for exterior [352]*352roofing material change. The letter requested that the Falkners fill out an approval form and return it to the ACC by April 18, 2006.

The Falkners returned a completed approval form, dated March 23, 2006, and included the materials used in the re-roofing of their home. Upon receiving no response, the Falkners’ attorney wrote the chairman of the ACC on June 8, 2006, to determine whether the request had been approved. CWHA’s attorney responded with a letter on June 16, 2006, stating that the Falkners’ roofing materials had been disapproved before the submission of the approval request form and that the CWHA would take further legal action.

The Falkners brought an action for declaratory judgment. They requested that the trial court interpret the Declaration of Restrictions. CWHA answered and counterclaimed for an injunction and damages. CWHA moved for summary judgment and the court later held a hearing. At the hearing, the trial court determined that it was uncontroverted that the Falkners did not comply with the original deed restrictions or tire procedures outlined in the Notice to obtain approval for their roof. The trial court further determined that it was uncontroverted that CWHA took no action to enjoin the construction of the new roof before completion. The court ultimately found that CWHA had failed to take action to enjoin the roof replacement within the requirements of Section 7 of the Declaration of Restrictions which states: “ ‘[I]f no suit to enjoin the erection of said building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.’ ” The trial court denied CWHA’s motion for summary judgment.

The court entered judgment in favor of the Falkners and stated that they were not required to remove their roofing materials. The court further entered judgment in favor of the Falkners on CWHA’s counterclaims.

Did the Trial Court Properly Interpret the Declaration of Restrictions P

CWHA argues that the trial court erred in its interpretation of the Declaration of Restrictions because the court used rules of [353]*353contract construction incorrectly and ignored the intent of the drafter. Further, CWHA argues that it had no duty to respond to the Falkners’ request for approval of their roof. Finally, CWHA argues that the trial court’s interpretation of the Declaration of Restrictions generates an absurdity because it requires CWHA to self-police the subdivision. On the other hand, the Falkners argue that the trial court’s interpretation of the Declaration of Restrictions was correct. In the alternative, the Falkners pleaded affirmative defenses of waiver, estoppel, and laches, and they argue these defenses on appeal.

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Falkner v. Colony Woods Homes Ass'n
198 P.3d 152 (Court of Appeals of Kansas, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
198 P.3d 152, 40 Kan. App. 2d 349, 2008 Kan. App. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falkner-v-colony-woods-homes-assn-kanctapp-2008.