Paul Berlin v. Livingston Property Owners Association , Inc.
2015-CA-01512-COA
| Miss. Ct. App. | Apr 25, 2017Background
- Paul and Janice Berlin leased a 3.56-acre lakefront lot in the Livingston subdivision, governed by recorded restrictive covenants and an Architectural Review Committee (ARC) that must approve fences and other improvements.
- The declaration reserves a 20-foot maintenance easement from the lake’s highwater mark across lakefront lots for LPOA’s lake maintenance and control purposes.
- The Berlins submitted fence plans showing the fence running down both side property lines, crossing the 20-foot maintenance easement, and extending 3 feet into the lake; the ARC unanimously disapproved because the fence crossed the easement and extended into the lake.
- Despite ARC disapproval and a warning letter from LPOA’s counsel, the Berlins built the fence (with three 8-foot gates) without ARC approval; LPOA sued for injunctive relief and attorneys’ fees to require removal of the portions encroaching on the easement.
- After a bench trial the chancery court found the Berlins violated the covenants, ordered removal of fence portions encroaching on the easement, awarded LPOA $17,485.58 in attorneys’ fees, and denied the Berlins’ counterclaims; the Berlins appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ARC’s failure to give a written statement of reasons within 30 business days excuses Berlins’ construction | Berlins: ARC’s failure to provide written reasons (per §10.03) invalidates enforcement so they could proceed | LPOA: ARC acted within 30 business days; reasons were communicated orally and by counsel’s letter; Berlins refused to cooperate | Court: No; substantial compliance + Berlins’ refusal to pursue remedy defeats their excuse |
| Whether fence unreasonably interfered with LPOA’s maintenance easement | Berlins: Gates and owner cooperation make access practical; no actual interference shown | LPOA: Regular maintenance requires unobstructed access; fence across full 20-ft easement would impede routine work and create safety/animal-control issues | Court: LPOA/ARC acted reasonably; injunction requiring removal affirmed |
| Whether LPOA’s failure to promulgate formal rules estops enforcement | Berlins: Board never issued construction rules so enforcement is improper | LPOA: Declaration makes rulemaking discretionary; lack of rules doesn’t nullify covenants | Court: No estoppel; declaration does not require rules and enforcement remains valid |
| Whether the chancery court erred in awarding attorneys’ fees without a separate hearing and by excluding a 2007 letter | Berlins: Needed hearing on fee reasonableness and excluded letter showed arbitrary enforcement | LPOA: Affidavit and submissions were sufficient; §9-1-41 permits court to decide based on filings and court’s own assessment; 2007 letter irrelevant | Court: No abuse of discretion; fee award reasonable without extra hearing; exclusion of letter not an abuse |
Key Cases Cited
- Perry v. Bridgetown Cmty. Ass’n, 486 So. 2d 1230 (Miss. 1986) (homeowners associations’ powers and reasonableness standard for covenant enforcement)
- Goode v. Vill. of Woodgreen Homeowners Ass’n, 662 So. 2d 1064 (Miss. 1995) (validity of covenants delegating architectural review authority)
- Gaw v. Seldon, 85 So. 3d 312 (Miss. Ct. App. 2012) (easement encroachment—actual interference vs. potential interference)
- Calvert v. Griggs, 992 So. 2d 627 (Miss. 2008) (servient-owner may fence easement if consistent with easement intent or does not unreasonably interfere)
- Microtek Med. Inc. v. 3M Co., 942 So. 2d 122 (Miss. 2006) (abuse-of-discretion standard for attorney-fee awards and meaning of "manifest" abuse)
- West v. West, 88 So. 3d 735 (Miss. 2012) (trial court should analyze Rule 1.5 factors but omission is not per se reversible if award not unreasonable)