HARRISBURG, N.C. —
Soon after the Aziz family moved to the Heatherstone community in Harrisburg in 2017, they discovered the backyard had drainage issues.
Adil Aziz applied for HOA approval and was approved to build a retaining wall and a fence.
"We found the source of the water. It was actually coming from our adjacent neighbor," Aziz said. "They had a 4-inch pipe that was directed to us and that's where the water was coming from. So we talked to the neighbors and it didn't go anywhere."
At the same time, Aziz became a board member of the HOA.
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"At the very first meeting, I was asking some questions about money. I thought it was mismanaged because we had to put some mulch. The cost was $12,000," Aziz said. "At the very next meeting, I was asked to step down as a board member."
In June 2018, a special community meeting was called to vote for his removal. Documents cited the Aziz family for failing to abide by the HOA's governing documents. Specifically, it said the Azizes property was not in compliance with the covenants. It also said that, although the board had approved an architectural request submitted by Aziz, the projects were not constructed according to the approval.
While homeowners voted to keep Aziz on as a board member, that didn't stop the violation letters from the HOA.
One violation was for building a retaining wall six inches taller than what the Azizes applied for, which was approximately 18 inches.
Another violation cited them for building a fence less than the required minimum of 12 feet from the curb.
Aziz told WCNC Charlotte that the HOA is not sending violation letters to other neighbors for violations of the same covenants.
"There's actually a neighbor who lives on the other street. He's in complete violation. His fence is only eight feet from the back of the curb. And they don't even bother with him," Aziz said.
The Azizes were also cited for a third violation, which claimed that they built a fence support without approval.
Adil Aziz said there's nothing in the covenants saying homeowners need to apply for a fence support separately.
Aziz said that in May 2018, the adjacent neighbors sent them a letter saying the fence support violated the declarations or original approval by the HOA.
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Aziz filed a complaint against the neighbors who in turn filed their own motions against the Azizes and the HOA.
The Azizes amended their complaint adding the HOA as another defendant, after which the HOA also filed a counterclaim.
"They called it a barrier but it's a fence support. It's holding our fence. They say we built it without approval. I said that's not true. We applied for the fence. We got approved to build a fence. He says we had to file separately for the fence support. Well, where in the covenants does it say we have to file separately for that? I mean, are we going to apply separately for a fence gate?"
In November 2021, Adil and Gladys Aziz represented themselves in a jury trial in a Cabarrus County courtroom.
Court documents show the family did not violate HOA covenants by constructing a retaining wall or a fence in the manner that they did.
However, the jury believed the Azizes did breach their obligation with concrete support.
"They want us to pay $4350 for not complying with the covenants," Aziz said.
The judge agreed and said the association was entitled to collect the fee.
The Azizes disagreed with the judge's decision since the couple asked for a declaratory judgment. They said, rather than judging the bylaws as a matter of law, the judge presented it to the jury as a matter of fact, a distinction they argue affected the outcome.
The Azizes have since recently filed a motion for reconsideration in the appellate court. They set up a gofundme to help with costs.
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WCNC reached out to the attorney for Heatherstone's HOA. In response, she wrote:
"The Association generally does not comment on ongoing litigation, out of respect for the legal process and to protect privilege. However, the Association does wish to make it absolutely clear that there is no merit to any claim of discrimination or selective enforcement by it. Heatherstone is a diverse community governed by covenants (rules and regulations) that apply to all homeowners equally. When the Azizes initially sued the Association and their neighbors they included a claim of selective enforcement. That claim was dismissed by the court. The current litigation has only continued because of the Azizes refusal to cure the violation on their property (which was affirmed by a jury) and because of their refusal to accept the outcome of a jury trial, and appeal, that they lost. This has led to the Association incurring substantial fees, all because of the Azizes' actions, and the board intends to pursue recovery for its membership consistent with the court's ruling. We are aware of the claims from the Azizes that the Association has refused to settle with them, as well. The fact is that the Azizes have demanded, and continue to demand, settlement on their terms alone. They have never conceded any obligation to pay back any portion of the fines assessed against them (and upheld by a jury of their peers) or any portion of the attorney fees the Association members collectively are entitled to recover from them under both the Declaration and North Carolina law. The Association contends that the Azizes have refused to engage in any reasonable settlement discussions, and until that happens, this case will continue to be litigated."
In a financial statement sent by the Azizes, Heatherstone's HOA spent almost $23,000 in legal fees in FY 2022 and approved another $25,000 for FY 2023.
Contact Jane Monreal at jmonreal@wcnc.com and follow her on Facebook, Twitter and Instagram.