Allegedly nonconforming structure in a subdivision; Deed restrictions; Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham; Belated request for post-construction approval; Whether a deed provision was void & unenforceable for vagueness; A homeowners association’s authority to pursue litigation; Tuscany Grove Ass’n v Peraino; Applicability of a voter-approval requirement

The court held that while the deed provision at issue, Section 15, was not void and unenforceable for vagueness, Article XII, Section 2 of plaintiff-Homeowners Association’s Bylaws prohibited this litigation because plaintiff failed to obtain co-owner voter approval for its cost. Thus, it affirmed the trial court’s dismissal of plaintiff’s action for declaratory relief concerning an allegedly nonconforming structure defendants built in their backyard without the required pre-approval of plaintiff. Plaintiff first asserted that the trial court erred in “ruling that defendants cured their failure to obtain approval” by requesting it after construction was complete. The court agreed “with plaintiff that such reasoning would have been erroneous,” but it did not find that the trial court engaged in that reasoning. And “the question of precisely when defendants sought approval of the structure now is irrelevant, as the only remaining issue to decide is whether the structure should be removed because it violates Section 15.” Next, the court agreed with plaintiff that the trial court erred in “ruling that Section 15 of the Warranty Deed is void and unenforceable” for lack of sufficient standards. The court held that the provision included “sufficient standards governing whether approval of a structure is warranted by plaintiff.” Further, the “mere fact that Section 15 seemingly allows plaintiff unilateral authority to grant or deny approval for a structure is not a basis for voiding” it. But defendants, as an alternate ground for affirmance, argued that the case had to “be dismissed because plaintiff did not obtain voter approval for these litigation expenses, contrary to Article XII, Section 2 of the Bylaws[.]” The court concluded that an “expense for litigation such as the instant case is not an ordinary and recurring operating expenditure. Rather, it is a non-recurring ‘nonoperating expenditure’ of plaintiff” and thus, subject to Article XII, Section 2’s voter-approval requirement. Because plaintiff did not obtain this approval, it did not have the authority to maintain this litigation.