SOUTHERN TRACE PROPERTY OWNER'S ASSOCIATION Plaintiff-Appellant
CHARLES WILLIAMS Defendant-Appellant
Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 579552 Honorable
Ramon Lafitte, Judge
I. THOMPSON, III Counsel for Plaintiff-Appellant.
PESNELL LAW FIRM By: William Alan Pesnell Counsel for
PITMAN, GARRETT, STONE, McCALLUM, and BLEICH (Ad Hoc), JJ.
BLEICH, J. (AD HOC)
an action to collect homeowners association dues. Both
parties have appealed from the trial court's judgment
which granted in part an exception of prescription filed by
the delinquent homeowner, Dr. Charles Williams, and granted
in part the relief sought by the homeowners association,
Southern Trace Property Owners Association
("STPOA"). For the reasons set forth below, we
reverse in part, amend in part, and, as amended, affirm.
AND PROCEDURAL HISTORY
filed this action against Dr. Williams on September 15, 2014,
seeking the payment of past-due homeowners association dues.
Dr. Williams filed an answer and an exception of prescription
wherein he asserted that La. C.C. art. 781 bars all recovery
sought by STPOA in this case. Dr. Williams also filed a
reconventional demand seeking reimbursement for funds
expended and services rendered allegedly on behalf of and/or
authorized by the homeowners association.
initial trial of the exception, the parties submitted the
matter without introducing any evidence. Based upon the
arguments of the parties, the trial court granted in part the
exception of prescription filed by Dr. Williams based upon
the court's finding that the two-year prescriptive period
for building restrictions set forth in La. C.C. art. 781
applied as a bar to STPOA's claim for recovery of all
association dues that had accrued more than two years prior
to the date STPOA filed its petition seeking to recover the
appealed the adverse judgment. This Court vacated the
judgment and remanded for further proceedings, directing that
the trial court conduct a hearing at which evidence
"includ[ing] any and all documents necessary to
determine the relevant restrictions on the property at issue,
including the covenants particular to the subdivision and Dr.
Williams's deed, as well as any other documents."
Alternatively, this Court noted that the parties could agree
to defer the issue to the merits of the trial. See,
Southern Trace Property Owners Ass'n v. Williams,
50, 992 (La.App. 2 Cir. 11/23/16), 210 So.3d
remand, at a hearing held on September 28, 2017, the parties
introduced evidence, which included the subdivision
covenants. The trial court's judgment, which was rendered
on March 29, 2018, and signed on May 21, 2018, granted in
part the exception of prescription filed by Dr. Williams as
to all dues that had accrued more than two years prior to
September 15, 2014, the date that STPOA's petition had
been filed, and rendered judgment in favor of STPOA, awarding
it "assessment dues from two (2) years prior to the
petition being filed, September 15, 2014, to date, "
together with interest thereon until paid. The trial court
further granted an exception of prescription filed by STPOA
as to claims for damages filed by Dr. Williams, which were
dismissed with prejudice. As noted above, both parties have
appealed from this judgment.
appeal, STPOA has assigned as error: (1) the trial
court's determination that the two-year prescriptive
period for an action for damages for the violation of a
building restriction set forth in La. C.C. art. 781 was
applicable rather than the ten-year prescriptive period
applicable to personal obligations provided by La. C.C. art
3499; and (2) the trial court's failure to award attorney
fees to STPOA. Dr. Williams' assignments of error are
that: (1) the trial court erred in ignoring the second
sentence of La. C.C. art. 781, which provides "[a]
building restriction that is not enforced within two years of
a noticeable violation thereof is extinguished as to the
property in violation of the building restriction."
According to Dr. Williams, his obligation to pay homeowners
dues was extinguished by operation of law and he therefore is
not liable for any assessments or dues; or, alternatively,
(2) the trial court erred in calculating the amount of the
assessments he owes by including dues for years neither pled
in STPOA's petition nor proven by the evidence presented;
and, (3) the principal amounts that Dr. Williams owes are
subject to 12% annual interest rather than the 18% annual
interest provided for in the STPOA community documents.
prescriptive statutes cited by the parties are La. C.C. art.
781, which applies solely to an action for a violation of a
building restriction, and La. C.C. art. 3499, which applies
to all personal actions that are not specifically addressed
by other legislative enactments.
C.C. art. 781 provides:
No action for injunction or for damages on account of the
violation of a building restriction may be brought after two
years from the commencement of a noticeable violation. After
the lapse of this period, the immovable on which the
violation occurred is freed of the restriction that has been
Louisiana C.C. art. 3499 provides:
Unless otherwise provided by legislation, a personal action
is subject to a liberative prescription of ten years.
restrictions, or "restrictive covenants" as they
are generally known in the common law and occasionally termed
in Louisiana, are charges imposed by the owner of an
immovable in pursuance of a general plan governing building
standards, specified uses, and improvements. La. C.C. art.
775; Fern Creek Owners' Ass'n, Inc. v. City of
Mandeville, 08-1694 (La.App. 1 Cir. 06/30/09), 21 So.3d
Louisiana Homeowners Association Act, La. R.S. 9:1141.1,
et seq. ("the LHAA"), became effective
June 16, 1999. Acts 1999, No. 309. It applies to existing and
future residential planned communities such as Southern Trace
whose declarations have been duly executed and filed for
registry. La. R.S. 9:1141.3(A). The LHAA does not affect the
validity or superiority of any provision of a community
document and applies only to the extent that community
documents are silent. Id.
R.S. 9:1141.2(3) defines "Community Documents" as:
the articles of incorporation, bylaws, plat, declarations,
covenants, conditions, restrictions, rules and regulations,
or other written instruments, including any amendment
thereto, by which the association has the authority to
exercise any of its powers to manage, maintain, or otherwise
affect the association property.
statutory scheme established by the LHAA mandates that
community documents prevail over the LHAA, except to the
extent that community documents are silent. The LHAA also
amended La. C.C. art. 783 to provide that the [LHAA]
"shall supersede any and all provisions of . . . Title
[V. Building Restrictions] in the event of a conflict."
Fern Creek Owners Ass'n, Inc., supra at 377.
R.S. 9:1141.5(B) provides that building restrictions may
include the imposition of an affirmative duty, including the
affirmative duty to pay monthly or periodic dues or fees, or
assessments for a particular expense or capital improvement,
that are reasonable for the maintenance, improvement, or
safety, or any combination thereof, of the planned community.
See also, La. C.C. art. 778, which provides that
building restrictions may impose on owners of immovable
affirmative duties that are reasonable and necessary for the
maintenance of the general plan.
to the enactment of the LHAA, the Louisiana Supreme Court
decided Brier Lake, Inc. v. Jones, 09-2413 (La.
04/14/98), 710 So.2d 1054. In that case, a homeowners
association filed suit, claiming that the defendant homeowner
had violated subdivision restrictions and also failed to pay
dues and assessments. On the issue of whether a majority of
lot owners in a subdivision could amend existing building
restrictions to make them more restrictive, the supreme court
found that unanimous consent of all lot owners was required.
The second issue in Brier Lake was the prescriptive
period for filing suits to collect delinquent dues and
assessments. Like Dr. Williams in the instant case, the
defendant homeowner asserted that the assessments were
building restrictions and as such, were subject to the
two-year prescriptive period set forth in La. C.C. art. 781.
Agreeing with the homeowners association's argument, the
trial court found that the assessments were a personal
obligation subject to the 10-year prescriptive period of La.
C.C. art. 3499. The supreme court reversed, finding that the
obligation was instead a building restriction subject to the
two-year period of La. C.C. art. 781. Therefore, the
defendant homeowner was only obligated to pay assessments
that were due within two years from when suit was
Court observed, in Southern Trace Property Owners
Ass'n, 210 So.3d at 842:
During the next legislative session, the legislature passed
Act 309, which was specifically designed to overrule
Brier Lake. The act stated that "[t]he
provisions of this Act legislatively overrule the case of
Brier Lake, Inc. v. Jones, 97-C-2413 (La. 04/14/98),
710 So.2d 1054, are remedial, and shall apply both
prospectively and retroactively." See Acts
1999, No. 309. The Louisiana Homeowners Association Act
("LHAA"), consisting of La. R.S. 9:1141.1-9:1141.9,
was enacted. The act also amended La. C.C. arts. 776 and 780
(regarding amendments and termination of building
restrictions, which no longer require unanimous consent) and
783 (regarding conflicts with the LHAA and the Louisiana
Civil Code). The LHAA legislation provides for building
restrictions in a "residential planned community"
or "planned community." The legislation emphasizes
the importance of "community documents, " building
restrictions and their enforcement. Under the statutory
scheme, the community documents prevail over any conflicts
with the Louisiana Civil Code articles on building
the rendition of Brier Lake, supra, and the passage
of Acts 1999, No. 309, there have been several appellate
cases addressing the issue of prescription in the context of
homeowners association dues and assessments. None of these
have found the two-year period of La. C.C. art. 781 to apply.
Southern Trace Property Owners Ass'n, 210 So.3d
at 843. This Court's analysis of these cases is set forth
In Lakewood Estates Homeowner's Ass'n, Inc. v.
Markle, 2002-1864 (La.App. 4th Cir. 04/30/03), 847 So.2d
633, writ denied, 2003-1511 (La. 09/26/03), 854
So.2d 362, a homeowners association sought to enforce liens
against property for the nonpayment of assessments from 1997
to 2001. The defendant homeowners argued their assessment
dues were prescribed under La. C.C. art. 781, 782 and 783,
and, due to the homeowners association's failure to
comply with its Act of Establishment for more than 10 years,
any real rights associated with the Act of Establishment were
dissolved. However, with little discussion, the court held
that La. C.C. art. 781 and 782 were inapplicable to the
payment of dues and fees and that the LHAA superseded La.
C.C. art. 783. No mention was made of Brier Lake.
In Eastover Prop. Owner's Ass'n, Inc. v.
Cochrane, 2002-1502 (La.App. 4th Cir. 05/21/03), 848
So.2d 710, writ denied, 2003-1604 (La. 11/21/03),
860 So.2d 544, a property owners association filed suit
against homeowners who had failed to pay association dues and
assessments for several years. The court rejected the
homeowners' contention that the two-year prescriptive
period of La. C.C. art. 781 was applicable. In so ruling, it
looked to the terms of the subdivision's act of
restriction, which set forth the nature of the assessments as
being personal to the owners of the property. Because it was
a personal obligation, the 10-year prescriptive period of La.
C.C. art. 3499 applied. Again, Brier Lake was not
In Louisiana Bureau of Credit Control, Inc. v.
Landeche, 2008-1099 (La.App. 3 Cir. 03/04/09), 6 So.3d
935, the homeowners association assigned to a collection
agency the defendant's delinquent assessments account.
The defendant filed an exception based on three years under
the open account law in the civil code, which was sustained
by the trial court. The plaintiff's argument that the
10-year prescriptive period was applicable was not reached on
appeal because the assessment sued upon had not been properly
passed by the homeowners association. Brier Lake was
cited in passing in a discussion of whether the assessment
was a building restriction or a personal obligation. Also of
relevance was the court's finding that LHAA only applied
when the homeowners association's community documents
were silent. . . .
In all of these cases, the courts had before them and
carefully considered the provisions of the pertinent
homeowners associations articles of incorporation and other
community documents. . . .
Southern Trace Property Owners Ass'n, supra at
December 1, 1987, Southern Trace, a Limited Partnership,
filed a "Declaration of Protective Covenants,
Conditions, and Building Restrictions and Grants of
Servitudes" ("Covenants") establishing the
Southern Trace District, which includes the Southern Trace
Property Owners Association. These Covenants have been
supplemented several times over the years.
Southern Trace Covenants specify that, as used therein, these
terms, inter alia, have the following meanings:
1.3 "Association" shall mean that
automatic-membership, Louisiana non-profit corporation made
up of Owners and called the Southern Trace Property ...