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Casenotes

Indiana

Restrictive Covenants

Highland Springs South Homeowners Ass'n, Inc v Reinstatler, 907 NE2d 1067 (Ind Ct App, 2009).

Facts:Vanessa Reinstatler owned a home within the jurisdiction of the Highland Springs South Homeowner's Association (HOA). Reinstatler requested that both the HOA and Zoning Board of Appeals (ZBA) approve her plans to construct an addition on her house. The ZBA unanimously approved a variance and granted building permits, but the HOA denied the request stating that it violated certain restrictive covenants in effect for the subdivision.

Reinstatler informed the HOA that she intended to proceed with construction. The HOA filed for a permanent injunction to stop Reinstatler's building. The trial court granted a motion to dismiss filed by Reinstatler, describing the HOA's motion as premature.

Holding:Reversed and remanded. Reinstatler's motion to dismiss asserted that the HOA's request for injunction was premature because she had not yet done anything to violate the restrictive covenant. Furthermore, she asserted the trial court had no jurisdiction to overrule the ZBA's grant of a variance and building permits.

The court of appeals found to the contrary, that although Reinstatler had not bought building materials or hired a contractor, her stated intent to begin construction and her concrete steps of obtaining a variance and building permits constituted a "present existence of an actual threat," that would warrant an injunction. Additionally, granting an injunction would not serve to overrule the ZBA. Although a private covenant does not affect the issuance of a variance, it may prevent implementation of a variance. Restrictive covenants are given a strong presumption of validity, and a zoning board's actions generally cannot violate a reasonable, valid covenant. Therefore, the decision was reversed and the case remanded for the motion for permanent injunction to be adjudicated on the merits.

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[Last update: 12-2-09]