Brier Lake, Inc. v. Jones
| Decision Date | 14 April 1998 |
| Citation | 710 So.2d 1054 |
| Parties | 97-2413 La |
| Court | Louisiana Supreme Court |
Ernest S. Anderson, Anderson & Anderson, Slidell, for Applicant.
Leslie A. Lanusse, Howard R. Fussell, James T. Rogers, III, Adams & Reese, New Orleans, for Respondent.
[97-2413 La. 1] VICTORY, Justice. *
We granted this writ primarily to determine whether a majority of lot owners in a subdivision may amend existing building restrictions to make them more restrictive. Because we hold that unanimous consent of all lot owners is required for such an amendment, we reverse that part of the judgment of the court of appeal which upheld the validity of such amendments.
On January 23, 1977, John Edward Chaignaud, the developer and then sole owner of all property in Brier Lake Estates, adopted and filed with the Clerk of Court of St. Tammany Parish "An Act of Dedication of Servitudes, Privileges and Restrictions Made by John Edward Chaignaud" (the "Original Restrictions"). The Original Restrictions were made applicable to separate "phases" of Brier Lake Estates as they were developed. On March 31, 1978, the Original Restrictions were filed and recorded and made applicable to Phase 4, which included Lots 115 through [97-2413 La. 2] 130. The restrictions pertinent to this case involve fence height, carports, satellite dishes, assessments and attorneys' fees.
The Original Restrictions created an Environmental Control Committee and provided as follows:
Section 1. Environmental Control Committee. Except for development within the community of "Brier Lake" by the Developer, and except for any improvements to any lot or to the common areas by the Developer, no building, fence, wall, well, sewerage facility, culvert, or other improvements or structures shall be commenced, directed, placed, moved, altered or maintained upon the Property, nor shall any exterior addition to or change or other alteration thereupon be made until the complete plans and specifications, showing the location, nature shape, height, material, color, type of construction and/or any other proposed form of change (including, without limitation, any other information specified by the Board of Directors or by the Environmental Control Committee) shall have been submitted to and approved in writing as to safety, harmony of external design, color and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by the Environmental Control Committee appointed by the Board of Directors.
Subject to the same limitations as hereinabove provided for, it shall be prohibited to install, erect, attach, apply, nail, build, alter plant, remove or construct any lighting, shades, screens, awnings, patio covers, decorations, fences, hedges, landscaping features, walls, aerials, slabs, sidewalks, curbs, gutters, patios, balconies, porches, driveways, walls ... until the complete plans and specifications ... shall have been submitted to and approved in writing ... by the Board of Directors of the Association or any committee designed by it.
Fences were specifically restricted as follows:
Section 1. Prohibited Uses and Nuisances. Except for the activities of the Developer, or except with the prior written approval of the Environmental Control Committee, or as may be necessary in connection with reasonable and necessary repairs or maintenance to any dwelling or upon the common areas:
(d) ... No fence or enclosure shall exceed 7 feet in height,....
[97-2413 La. 3] Assessments were provided for as follows:
Section 1. Annual Assessments and Carrying Charges. Each person, group of persons, corporation, partnership, trust or other legal entity, or any combination thereof, who becomes a record owner of a lot, whether or not it shall be so expressed in the act of sale, contract to sell or other conveyance, shall be deemed to covenant and agree to pay the Association, in advance, a monthly sum (hereinelsewhere sometimes referred to as "assessments" or "carrying charges") equal to one-twelfth (1/12) of the member's proportionate share of the sum required by the Association, as estimated by its Board of Directors, to meet its annual expenses, including, but in no way limited to the following:
...
Section 4. Non-payment of Assessment. Any assessment levied pursuant to this Act of Dedication of any installment thereof, which is not paid within thirty (30) days after it is due, may, upon resolution of the Board of Directors, bear interest at the legal rate and the Association may bring an action of law against the member personally obligated to pay the same, in which event such interest, costs and reasonable attorneys' fees of not less than twenty percent (20%) of the sum claimed shall be added to the amount of the assessment. This shall be and remain a personal obligation of the member and shall not become a lien on the member's lot.
...
Section 7. Annual Membership Assessment. The maximum annual assessment for each of the lots to which Class A membership is appurtenant shall not exceed the sum of fifteen dollars ($15.00) per month or $180.00 per year.
Finally, the Original Restrictions provided for amendment or termination as follows:
Section 1. Duration--Amendment. Except where permanent servitudes or other permanent rights or interests are herein created, the servitudes, privileges and restrictions of this Act of Dedication shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the owner of any lot subject to this Act of Dedication, their respective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date of recordation of this Act of Dedication, after which said servitudes, privileges and restrictions shall be automatically extended for successive periods of ten (10) years each, unless an instrument signed [97-2413 La. 4] by the then owners of a majority of the lots has been recorded, agreeing to change said servitudes, privileges and restrictions in whole or in part. The terms and provisions of this Act of Dedication, and any of the servitudes, privileges or restrictions herein contained, may be modified in whole or in part, terminated or waived, prior to or subsequent to the expiration of the thirty (30) year period aforesaid, by an Act of Modification, Termination or Waiver signed by the then owners of a majority of the lots and duly recorded with the Clerk of Court for St. Tammany Parish, Louisiana (emphasis added).
On December 13, 1983, a majority of the owners of the lots in Brier Lake Estates voted to amend the Original Restrictions and signed an "Amendment to Acts of Dedication of Servitude, Privileges and Restrictions for Additions 1 through 8, Inclusive, Brier Lake Estates," (the "Amended Restrictions"), which were filed for the record on January 5, 1984. The Amended Restrictions amended, consolidated and reinstated the various acts creating servitudes and restrictions in the Original Restrictions. While some of the servitudes and restrictions remained unchanged, several restrictions pertinent to this case were increased or added. Unless specifically noted below, the restrictions applicable to this case contained in the Amended Restrictions were the same as the Original Restriction provisions quoted above.
The Amended Restrictions continued the requirement that all plans, including plans for fences, garages and aerials, be submitted to the Environmental Control Committee for approval. However, the fence height restriction was increased to provide that "[n]o yard fences may exceed five (5) feet in height, but the Environmental Control Committee may approve a higher fence for special purposes."
The maximum amount of Assessments were increased to twenty dollars ($20.00) per month or $240.00 per year. Furthermore, in the event of nonpayment [97-2413 La. 5] of Assessments, the amount of interest, costs and reasonable attorneys' fees claimable was increased to thirty-five percent (35%) of the amount due.
Lastly, a provision was added stating that "[a]ny interested person who successfully enforces in court any of the provisions hereof (except as set forth in Article V, Section 4) shall be entitled to recover reasonable attorney fees and all costs." 1
Defendant, Herbert S. Jones ("Jones"), purchased Lot 124 in Brier Lake Estates on September 19, 1984. Although Jones was aware of the Original and Amended Restrictions, they were not specifically referred to in his deed and neither he nor his predecessor in title signed the Amended Restrictions. The cash deed provided only that the sale was "with all the buildings and improvements thereon, and all rights, ways, privileges, servitudes, appurtenances and advantages thereto belonging." Sometime between the fall of 1992 and early 1994, Jones constructed a six-foot fence, installed a television satellite dish and constructed a carport on his lot, all without submitting plans to the Environmental Control Committee for their approval. Further, Jones has failed to pay assessments since January 1, 1991.
Brier Lake instituted this action claiming that Jones' actions violated the Amended Restrictions and requesting that a mandatory injunction be issued requiring Jones to dismantle the fence and carport, and remove the television satellite dish and further enjoining him from building any other fence, carport or any other structure unless and until his plans and specification are submitted to and approved by the Environmental Control Committee. Brier Lake also requested an order compelling Jones to pay all outstanding dues and assessments together with reasonable attorneys' [97-2413 La. 6] fees. In addition, Brier Lake sought reasonable attorneys' fees and costs incurred in bringing this action.
After a trial, the district court granted this relief and the First Circuit Court of Appeal affirmed. Brier Lake,...
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