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Homeowners’ Association Turned Away by Unanimous Court of Appeals

Wednesday, September 25, 2013 @ 01:09 AM
Brian Montague

Few things are more offensive to the rights of homeowners than an overreaching homeowners’ association (HOA) board of directors.  The type usually run by those who – for hoa-policewhatever reason – seem more inclined to use power they don’t possess than refrain from using authority they have in the interest of neighborliness.

Last week, the Mississippi Court of Appeals rejected just such an effort in Kephart v Northbay Property Owners’ Association.  Invoking the principle that “courts do not look with favor on restrictive covenants, [construe them strictly] and in the case of ambiguity, usually most strongly against the person seeking the restriction,” the Court of Appeals in Kephart unanimously rejected the attempt of a Madison County HOA board to forbid a couple from leasing a home.  The lease fully complied with Northbay Subdivision covenants but not with a resolution enacted years later by the HOA board prohibiting all leases.  The HOA board sued the tenants and won at the trial court.  The Court of Appeals, in what many would call a victory for private property rights, unanimously reversed the decision and held for the sued tenants, ruling that a lease prohibition was something that only the majority of HOA members could approve.  HOA boards should take notice.  Please feel free to contact this office for more information or for assistance in this area.

Written by Brian Montague

Brian Montague

A fourth generation Hattiesburg native, an Iraq and military veteran, and a 1983 graduate of the University of Mississippi Law School, Brian Montague has established an AV rated, well-respected neighborhood law practice focusing on trying cases in state and federal court, corporate and transactional work, insurance defense and coverage, personal injury and wrongful death, residential construction and development issues, and estate probate and administration.

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