Residents take HOA to court – and win


HUNTERSVILLE – Sam and Gay Fragale, residents of NorthStone Country Club, never had a problem with the neighborhood’s homeowners association until they were forced to file a lawsuit to restore their property value.

After almost five years of going back and forth with the HOA, the Fragales now have the view of the golf course they have wanted since moving into the neighborhood in 2003.

“We chose our house and NorthStone because we are golfers and loved the view of the 10th fairway and hole,” Gay Fragale said.

The backyards of the Fragales and their neighbors, the Hutchinsons, are directly on the NorthStone golf course.

According to the Fragales, the Hutchinsons put up a screen of trees on their common property line at the end of 2005 or early 2006, which grew to completely obstruct the Fragales' view of the golf course.

Based on the NorthStone HOA Architectural Control Committee Design Guide, “Golf course lots shall have an unobstructed view of the golf course along the side yards as viewed from the street. The covenant also states a setback line of 30-feet from the rear lot line of the golf course lots for all improvements to the lot shall be established for the purpose of creating a natural viewing (passageway).”

The Hutchinsons received approval to plant some of the trees, but the approval of the trees they requested did not match what they actually planted along the property line, Gay Fragale said.

“The Hutchinsons got approval to plant shrubs and bushes, but they planted trees that were 25-feet tall. They put up Leyland Cypress trees that are not appropriate for this type of community based on its location between homes on the property line,” Sam Fragale said. “It blocked our view, and we became aware of how much it devalued our property.”

Between 2009 and 2011, when the Fragales tried to work with the Hutchinsons to get them to remove or modify the screen that was in violation, but nothing ever got resolved.

The Fragales then filed a complaint to NorthStone’s HOA Architectural Control Committee and Hawthorne Management Company in 2010 via multiple letters, phone calls and emails.

“We kept going back and forth with Hawthorne,” Gay Fragale said. “We kept getting the runaround. Nobody returned our phone calls from the HOA and when we finally spoke to someone, we were again misled and lied to.”

The Fragales did not receive a response until February 2011, when Hawthorne Management and an HOA attorney sent them a letter stating that there was nothing the board could do and that the Hutchinsons had received proper approval for the screen that was planted.

At that point, the Fragales decided to take the Hutchinsons and the HOA to court. All parties involved went through multiple hearings, motions to dismiss and appeals. The Fragales spent a little under $2,000 in court fees, which the HOA will reimburse, Gay said. But Sam and Gay believe the HOA should also be reimbursed for$12,000 in attorney fees, but the NorthStone covenants prevent the HOA from doing so.

“We used to be able to watch golfers from our deck and patio play the hole. We enjoyed that,” Fragale said. “It felt like the HOA and Hawthorne was trying to bully us into submission with delays and lies. We had no other option to protect our property value.”

Once the Hutchinsons were found in violation March 28, they were given 30 days to remove the trees or be fined $100 per day. But the Hutchinsons refused to comply, even with the NorthStone HOA Board offering to foot the bill for removing the screen of trees, Gay Fragale said.

Even though the Fragales had won in May, more needed to be done. The attorneys for both sides submitted a joint stipulation of facts for a summary judgment, forcing the HOA to enter the property to correct the violation.

Current and former HOA board members and the Hutchinsons declined comment and failed to return calls, voice messages and emails.

Eddie Knox, the attorney for the Fragales, believed the problem between the two neighbors was not worth taking to court.

“The issue should have been resolved between the neighbors,” Knox said. “We went to the North Carolina court twice and won. The neighbors should have known not to plant high-growing trees.”

He also said the HOA did not move fast in coming up with a solution.

“The HOA kept hoping it would go away and did not want to offend the neighbor,” Knox said, “It goes to show if you don’t want to be neighborly, then the courts must provide fairness and justice.”

Jim Lane, a Huntersville HOA reform advocate, said North Carolina HOA laws do not protect homeowners. Lane said more should be done on the legislature’s part to protect homeowners from the HOAs’ excessive powers and abuse.

“If you want to see a change or your rights observed, then you need to talk to your legislators in Raleigh,” Lane said. “You have no protection because the N.C. legislature isn’t acting.”

A good portion of the trees were removed July 8 from the property line, but only trees that obstructed view of the golf course were taken down. The others that stand closer to the street were not cut down, even though those were also found in violation. The Fragales are waiting for the judge who signed the order to return from vacation.

“An HOA attorney said he would consent to the removal of the rest of the screen of trees to bring it into compliance with the ‘street to golf course view’ violation only if Sam and I would agree to pay for the damage or replacement of the trees,” Gay Fragale said.

The Fragales vowed to make sure as many people as possible are educated about the North Carolina laws that protect HOAs and management companies because they have lobbyists.

“Homeowners don’t have a voice unless you take the HOA to court,” Gay Fragale said. “To date, no one from the board has even attempted to issue an apology.”

Although she is not completely satisfied, Gay Fragale said she loved the sound of the chainsaws and machinery dragging away the trees she and her husband wanted removed years ago.

“Wow, we can see the green again,” she said. “We haven’t seen that for way too long.”


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