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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 118784
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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I live in an area with special covenants in Mililani, Hawaii.

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I live in an area with special covenants in Mililani, Hawaii. I recently submitted design plans for a wall and extended driveway to our HOA which are not in accordance with the special covenants, but are okay under city ordinances. Our contractor did obtain a city building permit. Additionally, many of our neighbors' walls and driveways, which also violate the special covenants have been allowed. Our plans were denied approval. Do we have a legal right to go forward with construction? Has a legal precedent been set based on the construction of neighboring walls and driveways which are also not in compliance with area covenants?
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

The problem with all HOAs is that even though city and state laws may allow for something, the HOA by their declarations and covenants are allowed to make it more restrictive than the state or local law and residents who buy in these areas are bound by those more restrictive covenants in contract to the HOA. What this means is that if you begin to build contrary to what the HOA says and contrary to the covenants the HOA can sue you for breach of the covenants and make you stop and can even make you take down what is in violation.

You do have recourse though. If the HOA denied your request, you are entitled to an appeal and to present your evidence to the board as to why it should be allowed by presenting photographs of every other property in the HOA with the similar construction you propose and argue to the board that by their failure to enforce this on others they waived their continued right to enforce this restriction or ask for a waiver based on them allowing others to have the same type construction.

If the board denies your appeal without good cause and because there are others with the same or similar structures, then you have a right to go to court against the HOA and seek a "declaratory judgment" that the HOA denial was arbitrary and capricious and without any good cause and ask the court to declare you have a right to construct this drive and wall as you proposed.

The case law is not as specific as you may think and each of these cases is determined on a case by case basis and usually never reach the appeals court which is where decisions are written and published, so that would not do you as much good.

Furthermore, if this needs to go to court for declaratory judgment you will need an HOA attorney to represent you on the matter in court.

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