COA rules for homeowners who argued neighbors’ pole barn violated neighborhood covenants

Morgan County homeowners who challenged a pole barn that violated their neighborhood’s covenants weren’t required to challenge every neighborhood violation to bring their case against the barn, the Indiana Court of Appeals ruled Friday, affirming an order for the owners of the pole barn to either reduce or remove the structure.

The dispute centers on the covenants for Monrovia Place, a subdivision in Monrovia. Dan and Alice Dejanovic have lived in Monrovia Place since 2003, while their neighbors, Sandra King and Danielle Benge, arrived in 2018.

While there is no homeowners association, the neighborhood has covenants limiting lots to one home with an attached garage plus one out building no greater than 400 square feet. Also, all buildings had to be at least 80% brick balanced around all four exterior walls.

Benge and King told the Dejanovics in October 2018 that they wanted to build a pole barn, saying the restrictive covenants did not apply to them. They then built a 30-by-40 structure with a metal facade.

The Dejanovics responded with a complaint for breach of covenant, but Benge and King alleged their neighbors had waived their right to enforce the covenant by not objecting to other violations in the neighborhood. But the Morgan Superior Court disagreed, noting the other violations were on the “other” side of the subdivision and did not affect the Dejanovics’ property like the pole barn.

The court ordered Benge and King to either remove or reduce the pole barn within 90 days of its December 2020 order. It also ordered them to pay the Dejanovics $12,913.13 in attorney fees.

The Indiana Court of Appeals upheld that ruling on Friday, with Judge Nancy Vaidik writing that there were only three other pole barns in the neighborhood, and the one built by Benge and King was 33% larger than the others. The other barns were on the western side of the neighborhood, while the Dejanovics lived on the eastern side.

“Defendants have failed to establish the trial court’s judgment is contrary to law,” Vaidik wrote in Sandra A. King and Danielle D. Benge v. Dan Dejanovic and Alice Dejanovic, 20A-PL-2366. “Plaintiffs’ failure to object to the other violations in the subdivision does not deprive them of their right to enforce the covenant for a violation right next door to them and ‘about as close as a building could be under the county development standards.’

“As the trial court found, ‘[t]he non conforming uses in place prior had a minimal impact on the Plaintiffs[‘] enjoyment of the character of the neighborhood.’ The same cannot be said about Defendants’ pole barn,” Vaidik continued. “Plaintiffs are not required to ‘police’ violations in other parts of the subdivision that do not directly interfere with the use and enjoyment of their property. To hold otherwise would require Plaintiffs to use their own time and money to enforce covenants in areas that don’t affect them to preserve their right to enforce covenants in areas that do. We therefore affirm the trial court.”