Austin Brook and Austin Park Property Owners Association, Inc. v. William E. Nabors and Sandra R. Nabors

Rel: June 5, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2025-2026

_________________________

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_________________________

Austin Brook and Austin Park Property Owners Association,

Inc.

v.

William E. Nabors and Sandra R. Nabors

Appeal from Baldwin Circuit Court

(CV-23-901009)

PER CURIAM.

Austin Brook and Austin Park Property Owners Association, Inc.

("the POA"), a nonprofit corporation and the governing body of a

residential subdivision in Daphne, appeals from a judgment entered by

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the Baldwin Circuit Court regarding the enforcement of certain

restrictive covenants.

Procedural History

Sandra R. Nabors purchased property from Annalea Rolle in the

Austin Park II subdivision ("the subdivision") in 2013. The deed provided

that the conveyance was subject to "[r]estrictive covenants as contained

in instruments recorded in Instrument No. 916523, Instrument No.

1010144, Instrument No. 1055892 and Instrument No. 1174469." The

deed from Rolle stated that "IN WITNESS WHEREOF, Grantor has

hereunto set her hand and seals on September 5, 2013." (Capitalization

in original.) On August 18, 2018, Sandra transferred her interest in the

property, pursuant to a quitclaim deed, to herself and her husband,

William E. Nabors.

On August 14, 2023, the POA sued the Naborses, alleging that they

had failed to comply with the covenants applicable to the property by

regrading their lot and by installing a concrete patio, an aboveground

pool, and a fence without the approval of the subdivision's architectural-

review committee. On September 22, 2023, the Naborses filed an answer,

denied that the POA had stated a valid claim, and asserted certain

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affirmative defenses, including waiver, estoppel, harassment, the

running of the applicable statute of limitations, and discriminatory

enforcement. Following a bench trial, the trial court entered a final

judgment stating:

"This matter came before the Court on April 7, 2025.

Judgment is entered on behalf of the Plaintiff, [the POA,] and

against the Defendants, [the Naborses], as follows:

"1. The [Naborses] shall remove or lower the deck and/or

railing surrounding their swimming pool such that it is

concealed by [their] privacy fence while looking from street

level.

"2. [The Naborses] are ordered to maintain the

preventive measure they have taken to address the erosion

issues.

"3. A judgment is entered in favor of [the POA] and

against the [Naborses] in the amount of $6,053.02 for the

recovery of which let execution issue.

"4. All other relief requested is hereby denied.

"5. Costs were prepaid."

On May 14, 2025, the POA filed a motion to alter, amend, or vacate the

judgment. That same day, the POA filed a motion for an award of

attorneys' fees and expenses in the amount of $15,738. On June 3, 2025,

the trial court denied the postjudgment motion but granted the POA's

motion for an award of attorneys' fees. On June 4, 2025, the trial court

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entered an amended judgment to include the amount of $15,738 in

attorneys' fees. On July 2, 2025, the POA filed its notice of appeal.

The Bench Trial

At the trial, the following pertinent evidence was adduced. Brandy

Robertson-Phillips, the president of the POA, testified that her husband

had purchased property in the subdivision in 2012. Robertson-Phillips

stated that she and her children had moved onto the property with her

husband. She said that their property was behind the Naborses' property.

Robertson-Phillips stated that any proposed changes to property in the

subdivision had to be submitted to the architectural-review committee

and approved by the committee before those changes could be made.

Robertson-Phillips testified that there were restrictions on grading

applicable to the properties in the subdivision. She stated that fences

had to be approved by the architectural-review committee.

Robertson-Phillips testified that pools had to be "in ground in

nature." She stated that an inground pool is a pool that is level with the

ground. She stated that the architectural-review committee required

that a plan for a pool contain survey information, property lines, and

offset lines. She acknowledged that aboveground spas or hot tubs could

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be permitted if approved by the architectural-review committee.

Robertson-Phillips testified that the Naborses have an aboveground pool,

that they have decking that goes around the pool, that they have hand

railing that goes around the pool, and that grading changes were made

to the Naborses' property. She stated that she could not find any written

record of the architectural-review committee approving any of those

changes to the property. Robertson-Phillips explained that she had

spoken with "multiple years of committee members" and none of them

had any written records approving the changes.

Robertson-Phillips testified that the Naborses had made grading

changes and put up a new privacy fence in May 2023. She stated that

the Naborses had not obtained approval from the architectural-review

committee for the 2023 changes. Robertson-Phillips said that the

Naborses also had added larger rocks and concrete in the patio area. She

stated that the Naborses' fence had caused erosion on her property.

Robertson-Phillips testified that the POA's position was that the

Naborses' pool was an aboveground pool. She stated that the hand

railing around the pool extends above the existing privacy fence. She

stated that the POA was asking for attorneys' fees. Robertson-Phillips

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testified that the Naborses' adult son, who was mentally disabled, liked

to stand on the pool deck and wave to people and blow bubbles.

Robertson-Phillips stated that she had been president of the POA

since April 2024. She stated that she and her husband, Jeff Phillips, had

previously been members of the POA board in 2012 or 2013. She said

that her husband was no longer a member of the board. Robertson-

Phillips stated that the Naborses had replaced the pool on their property.

Robertson-Phillips said that she had contacted the POA board when the

Naborses built their pool. She said that neither she nor her husband

were members of the board in 2017 when the pool was built. Robertson-

Phillips testified that she was unaware of any conversations between the

Naborses and any board member regarding the pool.

Robertson-Phillips testified that the POA issued a letter in 2022

asking the Naborses to cease building the decking around the pool. She

stated that she did not have a similar cease-and-desist letter regarding

the construction of the swimming pool. Robertson-Phillips testified

regarding the elevation of the Naborses' property. She stated that she

believed the hand railing around the pool was a violation of the restrictive

covenants because it had not been approved by the architectural-review

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committee. She said that part of the objection regarding the hand railing

was that it was visible over the privacy fence. Robertson-Phillips said

that anything showing above a fence amounted to a violation of the

covenants unless permission had been obtained from the subdivision's

architectural-review committee. She stated that the most recent

construction in the Naborses' backyard began in May 2023 or the middle

of June 2023. When asked whether there was a provision in the

covenants allowing plans to proceed if no response was received after

submission to the architectural-review committee, Robertson-Phillips

responded that she did not know. Counsel for the POA stipulated that

paragraph 3.C. of the restrictive covenants authorizes a resident to

proceed with construction if the architectural-review committee does not

respond to the submitted plans within 30 days.

Robert Dixon testified that he had purchased property in the

subdivision in 2018. Dixon became a member of the POA board in 2021.

He said that he was unaware of any record approving the pool, the

decking, or the concrete-rock additions to the Naborses' property. Dixon

testified that, when he became aware that the Naborses were building a

fence that was too high, he had had a conversation with William Nabors.

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Dixon stated that William had been angry about being questioned

regarding the fence.

Dixon said that William had come to a meeting of the POA board to

discuss the pool. Dixon stated that William had told the board about

incidents at the subdivision's community pool involving parents of

younger children because of the Naborses' adult son wanting to play with

those children.

Roy Forson testified that he had lived in the subdivision from 2012

to 2023. Forson stated that he had been a member of the POA board from

2020 through November 2023. Forson testified that he had been at the

Naborses' house and that he had given William permission to install a

handrail around the pool. Forson acknowledged that the Naborses' pool

and deck already existed at that time. During questioning by the POA's

counsel, Forson explained:

"[Forson]: I told him that he could put up the handrail;

but if it was high enough to where it could be seen over the

fence and if people were on the deck and they could be seen

over -- if he changed the deck -- elevation of the deck, then he

wouldn't be allowed to do that. But I did tell him he could put

up the handrail.

"[The POA's counsel]: But you never approved verbally

or in writing or otherwise anything else?

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"[Forson]: Nothing else."

Forson stated that the architectural-review committee never voted

on anything concerning the Naborses' property. Forson said that William

had told him that he had not gotten approval to put in the pool. Forson

testified that he was friends with the Naborses and that he and his wife

would sometimes swim in the pool. Forson said that part of the pool was

in the ground and part of the pool was above the ground. He stated that

the deck around the pool appeared to be appropriately constructed.

Jeff Phillips testified that he and his wife lived near the Naborses.

Phillips stated that the Naborses had changed the elevation on their

property, which, he said, had caused water to run onto the Phillipses'

land. Phillips testified that they did not mind the pool at first because

the Naborses' disabled son would swim in it. He stated that he did mind

the later additions of the deck and fence. Phillips testified that he had

been a member of the POA board but could not recall the dates. Phillips

stated that the pool had been in place for eight years. Phillips denied

that he told William that he could do whatever he wanted in his backyard

as long as it was behind the privacy fence.

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William testified that his family moved to their property in 2013.

William stated that his "special-needs" adult son lived with them.

William testified that he had built a part inground and part aboveground

pool for the family. William said that he sought approval from the

architectural-review committee. William explained that he went to one

of the meetings of the committee with his son. William testified:

"I went to one of their meetings, and I brought [my son]

with me. And I explained why -- we why we were doing -- why

we put it in. Because he wasn't welcome at the pool itself from

other parents because he liked to run up on them. I explained

-- I brought him with me and let them all meet him.

"I said, you guys know him. They all said, yeah, we

know [him], we see him out there all the time. I said, we put

it in because he needs a safe place where he can enjoy the

water without having to bother other people. And so -- and

also that -- that this was necessary for his development. I was

told that if we do not get back with you within 30 days, it's

fine. No one contacted me."

William testified that he later learned that there was a problem

with the pool because it was partially inground and partially

aboveground. He said that he was never served with a cease-and-desist

letter regarding the pool. He stated that the pool was built in 2017.

William testified that, before the pool was built, Phillips had told him

that the pool was fine as long as it was behind the privacy fence. William

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said that he believed Phillips had the authority of the POA. He said that

Forson and his wife had been swimming in the pool. William explained

that Forson, as president of the POA, had recommended that William

install a handrail around the deck of the pool. William stated that he

received a cease-and-desist letter regarding the deck in March 2022.

William said that the deck had already been installed at that time.

William testified that he submitted a form to the architectural-

review committee to replace his privacy fence but never received

anything from the committee. William admitted that he had to trim some

poles on the privacy fence to meet the six-feet height requirement of the

covenants. William admitted that the handrails on the deck could be

seen over the privacy fence. William stated he had placed a barrier

underneath the rocks that had been added to the backyard to prevent

erosion. Although William was asked whether removing the additions to

the property would be a financial hardship, counsel for the POA objected

to that question, and the trial court sustained the objection.

Standard of Review

" 'The ore tenus standard of review generally applies to

judgments entered following a bench trial.' R & G, LLC v.

RCH IV-WB, LLC, 122 So. 3d 1253, 1256 (Ala. 2013).

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" 'Under the ore tenus standard of review,

findings on disputed facts are presumed correct,

and the trial court's judgment based on those

findings will not be reversed unless the judgment

is palpably erroneous or manifestly unjust.

Southside Cmty. Dev. Corp. v. White, 10 So. 3d

990, 991 (Ala. 2008). " ' " 'The presumption of

correctness, however, is rebuttable and may be

overcome where there is insufficient evidence

presented to the trial court to sustain its

judgment.' " ' " 10 So. 3d at 991-92 (quoting Retail

Developers of Alabama, LLC v. East Gadsden Golf

Club, Inc., 985 So. 2d 924, 929 (Ala. 2007), quoting

in turn Waltman v. Rowell, 913 So. 2d 1083, 1086

(Ala. 2005), quoting in turn Dennis v. Dobbs, 474

So. 2d 77, 79 (Ala. 1985)).'

"Lawson v. Harris Culinary Enters., LLC, 83 So. 3d 483, 491

(Ala. 2011).

"Under the ore tenus standard, 'when a trial court

makes no specific findings of fact, "[an appellate court] will

assume that the trial judge made those findings necessary to

support the judgment." ' New Props., L.L.C. v. Stewart, 905

So. 2d 797, 799 (Ala. 2004) (quoting Transamerica

Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So. 2d

375, 378 (Ala. 1992)). 'Additionally, we note that "the ore

tenus standard is inapplicable 'where the evidence is

undisputed, or where the material facts are established by the

undisputed evidence.' Salter v. Hamiter, 887 So. 2d 230, 234

(Ala. 2004)." Burkes Mechanical[, Inc. v. Ft. James-

Pennington, Inc.], 908 So. 2d [905,] 910 [(Ala. 2004)]. In such

cases, appellate review is de novo. Id.' Lawson, 83 So. 3d at

491."

Merchants Bank v. Head, 161 So. 3d 1151, 1153-54 (Ala. 2014).

Discussion

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In its brief, the POA insists that the pool, the concrete patio, and

the raised deck with the hand railing must be removed from the property

because, it contends, those additions violate the covenants applicable to

the property. 1 The POA argues that the Naborses failed to obtain written

approval from the subdivision's architectural-review committee in

violation of the unambiguous covenants, that the covenants provide that

failure to enforce a covenant does not waive the right to enforce the

covenant thereafter, and that the Naborses did not plead or present

evidence of relative hardship relating to the enforcement of the

covenants.

At the outset, we note that we agree with the POA's argument that

the Naborses did not plead or present evidence of relative hardship. "The

relative-hardship test is 'an equitable doctrine that generally provides

that a restrictive covenant "will not be enforced if to do so would harm

one landowner without substantially benefitting another landowner." ' "

1At the trial, there was testimony regarding the privacy fence

installed in 2023 and erosion issues. The POA does not challenge on

appeal the trial court's judgment regarding the fence and erosion issues;

therefore, those arguments are waived. See Gary v. Crouch, 923 So. 2d

1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to

addressing the arguments raised by the parties in their briefs on appeal;

arguments not raised by the parties are waived.").

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Bekken v. Greystone Residential Ass'n, Inc., 227 So. 3d 1201, 1216 (Ala.

Civ. App. 2017) (quoting Grove Hill Homeowners' Ass'n v. Rice, 90 So. 3d

731, 736 (Ala. Civ. App. 2011) (abrogated on other grounds), quoting in

turn Lange v. Scofield, 567 So. 2d 1299, 1302 (Ala. 1990)).

Our supreme court in Cole v. Davis, 383 So. 3d 646, 653-54 (Ala.

2023), summarized the relative-hardship test as follows:

"Although, as noted earlier, the breach of a restrictive

covenant is, by itself, enough to warrant the issuance of an

injunction, in Lange [v. Scofield, 567 So. 2d 1299 (Ala. 1990),]

this Court stated that enforcement of covenants running with

land ' "is governed by equitable principles, and will not be

decreed if, under the facts of the particular case, it would be

inequitable and unjust." ' 567 So. 2d at 1302 (quoting 20 Am.

Jur. 2d Covenants, Conditions & Restrictions § 313 (1965)).

"....

"If ' "the restrictive covenant has ceased to have any

beneficial or substantial value" ' or ' "the defendant will be

subject to great hardship or the consequences would be

inequitable," ' a court, applying equitable principles, … will

not enforce the covenant. Id. (citation omitted).

"In Lange, this Court explained:

" ' "The equitable enforcement of a restriction

can be invoked only for the purpose of protecting

the benefit which it was the object of the covenant

to afford. If the restrictive covenant has ceased to

have any beneficial or substantial value to the ...

property, it can form no ground for equitable relief

.... [I]f the defendant will be subject to great

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hardship or the consequences would be

inequitable, relief will be denied." '

"Id. (citation omitted)."

Here, the Naborses did not raise relative hardship in their pleadings, and

the trial court did not permit William to testify regarding the hardship

the removal of the pool, the patio, and the deck with a handrail would

cause them. The Naborses have not sought appellate review of the trial

court's rulings barring the introduction of evidence regarding the

potential applicability of the relative-hardship principles summarized in

Cole, supra. Accordingly, the defense of relative hardship is not available

to support the trial court's judgment.

We now turn to the covenants, which provide in pertinent part:

"3. Architectural Review Committee: In order to

maintain such property as a pleasant and desirable

environment, to establish and preserve a harmonious design

for the community, and to protect and promote the value of

the property, no home, building, gazebo, fence, garage, or any

other structure or improvement of any nature or addition

shall be erected, placed, attached to or altered until the

proposed plans, specifications, exterior color and finish, plot

plan (showing proposed location of such home, building or

structure, drive and parking area), building height and

grading, and drainage plans shall have been approved in

writing by the Architectural Review Committee prior to

commencement of construction.

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"A. The architectural and design review shall

be directed toward obtaining the following

objectives:

"1. Preventing excessive or

unsightly grading, indiscriminate

earth moving or clearing of property,

removal of trees and vegetation which

could cause disruptions of natural

water courses or seat natural land

forms;

"2. Insuring [sic] that the

architectural design of structures and

their materials and colors are visually

harmonious with the overall

appearance of the community; and

"3. Insuring [sic] that any

development, structure or landscaping

complies with the provisions of these

covenants.

"B. The committee shall be composed of three

(3) individuals designated by the Developer during

the period of developer control; and by a majority

of the Property Owners Association members after

the period of developer control. The affirmative

vote of a majority of the members of the Committee

shall be required in order to issue any permit. The

Developer shall retain control of the Architectural

Review Committee until the Developer has sold

and conveyed all the lots subject to this

declaration. Developer has the right to relinquish

control to the property owners association at any

time it chooses for the purpose of the property

Owners to control the Committee.

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"C. One (1) copy of all plans and related data

shall be submitted to the Architectural Review

Committee. Approvals shall be dated and shall not

be effective for construction commenced more than

twelve (12) months after such approval.

Disapproved plans and related data shall be

accompanied by a reasonable statement of the

items found unacceptable. In the event approval of

such plans is neither granted nor denied within

thirty (30) days following receipt by the

Architectural Review Committee of the written

request for approval, the provisions of these

sections under paragraph 3 shall be thereby

waived. Refusal or approvals of plans, site

location, building height, or specifications may be

based by the Architectural Review Committee

upon any ground which is consistent with the

objectives of these covenants, including purely

aesthetic considerations, so long as such ground is

not arbitrary or capricious.

"….

"22. Fences: No fencing in excess of six (6) feet in height

shall be allowed on any lot and all fences must be constructed

of wood or wrought iron. All fencing must face outward from

the lot. The Architectural Review Committee, prior to

construction thereof, must approve all fences, hedges or

ornamental structure.

"23. Pools and Pool Enclosures: All pools and pool

enclosures must be designed to compliment [sic] the

architectural components of the dwelling. Pools must be of an

in ground nature. Pool enclosures may not be free standing. If

screening is desired, the enclosure must be designed as an

integral part of the roof and walls and not appear as an added

appendage. All pool equipment, pumps, and etc. shall be

stored out of view and pump houses must be architecturally

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related. Above ground spas or hot tubs may be permitted with

prior written approval of the Architectural Review

Committee, and only in rear yards behind walled or screened

fence areas.

"….

"37. Miscellaneous

"….

"G. The Developer specifically reserves the

right to amend this declaration on its own motion

from time to time for a period of fifteen (15) years

from the date hereof, so long as such

amendment(s) does not materially affect lot or lots

subject hereto which is no longer owned by the

Developer. The Developer shall have the sole and

exclusive right and option to cause more or less

contiguous property to be added to or to be made

subject to the restrictive covenants herein

contained at a later date. Such additions shall not

be subject to any restrictive covenants which

restrict the use of such added property to a

standard less than the standards herein created

except that such use may include single family use

compatible with the standards set forth herein.

This declaration shall be enforceable by the

Developer, Architectural Review Committee, or

any owner by a proceeding at law or in equity

against any person or persons violating or

attempting to violate or circumvent any covenant

or restriction, either to restrain violation or to

recover damages; a failure by any party to enforce

any covenant or restriction herein contained for

any period of time shall in no event be deemed a

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waiver or estoppel of the right of any of the

foregoing to enforce the same thereafter. " 2

In Cole, 383 So. 3d at 653, our supreme court explained:

"Our Court has previously recognized that, as a general

matter, 'restrictive covenants are not favored in the law and

will therefore be strictly construed by this Court.' Lange v.

Scofield, 567 So. 2d 1299, 1301 (Ala. 1990). 'All doubts must

be resolved against the restriction and in favor of free and

unrestricted use of the property.' Id.

"However, when the language of a restrictive covenant

is not 'of doubtful meaning [or] ambiguous,' the language of

that covenant 'is entitled to be given the effect of its plain and

manifest meaning.' Laney v. Early, 292 Ala. 227, 231-32, 292

So. 2d 103, 107 (1974). 'If "there is no inconsistency or

ambiguity within a restrictive covenant, the clear and plain

language of the covenant is enforceable by injunctive relief." '

Hipsh v. Graham Creek Estates Owners Ass'n, 927 So. 2d 846,

848 (Ala. Civ. App. 2005) (quoting Carpenter v. Davis, 688 So.

2d 256, 258 (Ala. 1997)). That proposition of law takes

precedence over the disfavor that our Court has previously

shown toward restrictions of the use of land. Laney, 292 Ala.

at 231, 292 So. 2d at 106-07.

"In Tubbs v. Brandon, 374 So. 2d 1358, 1361 (Ala. 1979),

this Court stated:

" 'When a restrictive covenant is broken, ...

an injunction should be issued because the mere

breach of the covenant is a sufficient basis for

interference by injunction. The right to enjoin such

a breach will not depend upon whether the

2The covenants were originally recorded in the probate office in

2007.

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covenantee will be damaged by the breach. Reetz

v. Ellis, 279 Ala. 453, 186 So. 2d 915 (1966).' "

(Emphasis omitted.)

The POA argues that the Naborses were obligated to obtain written

authorization from the architectural-review committee for each of the

improvements at issue. It argues that there is no difference among any

of the improvements because, it says, each of the improvements required

written approval from the architectural-review committee and that the

trial court erred in choosing to enforce the covenants regarding some of

the improvements and not others. The POA further argues that the

language in the covenants binding the Naborses' property is contractual

in nature and not ambiguous because, it says, the covenants plainly

require written approval from the architectural-review committee before

construction of any of the property improvements in this case, including

the prohibited aboveground pool. According to the POA, the record

reflects that the Naborses violated those covenants regarding the pool

(constructed in 2017), the large concrete patio (constructed in 2022), and

the raised deck with a handrail (constructed in 2023). The evidence

concerning the three additions varies, and we address each in turn.

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The pool was partially in the ground according to William and

Forson. The covenants provide that "[p]ools must be of an in ground

nature." Robertson-Phillips testified that that language means that the

pool must be level with the ground. However, there is no written

definition in the covenants to that effect. In their responses to

interrogatories, the Naborses pointed out that the pool was "of an in

ground nature" because it was three feet in the ground at some points.

"Restrictive covenants will be recognized and enforced when

established by contract, but they are not favored and will be strictly

construed. Carpenter v. Davis, 688 So. 2d 256, 258 (Ala. 1997)." Hipsh v.

Graham Creek Ests. Owners Ass'n, Inc., 927 So. 2d 846, 848 (Ala. Civ.

App. 2005). When the language in a restrictive covenant is ambiguous,

its construction will not be extended by implication or include anything

prohibited and all doubts and ambiguities must be resolved against the

party seeking enforcement. Vestlake Cmtys. Prop. Owners' Ass'n, Inc.

v. Moon, 86 So. 3d 359, 365 (Ala. Civ. App. 2011). In written

instruments, two types of ambiguities can arise: a patent ambiguity and

a latent ambiguity. McCollum v. Atkins, 912 So. 2d 1146, 1148 (Ala. Civ.

App. 2005). A patent ambiguity results when a document, on its face,

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contains unclear or unintelligible language or language that suggests

multiple meanings. Vestlake, 86 So. 3d at 365. " 'A patent ambiguity is

not a true ambiguity; it is merely confusion created on the face of the

[instrument] by the use of defective, obscure or insensible language.' "

McCollum, 912 So. 2d at 1148 (quoting Jacoway v. Brittain, 360 So. 2d

306, 308 (Ala. 1978)). A latent ambiguity occurs when the language

employed is clear and intelligible and suggests but a single meaning, but

some extrinsic fact or extraneous evidence creates a necessity for

interpretation or a choice among two or more possible meanings. Bekken,

227 So. 3d 1201.

Here, the trial court did not order that the pool be removed. There

was testimony from William and Forson that the pool was partially

inground. The covenants provide that "[p]ools must be of an in ground

nature," an ambiguous phrase. Robertson-Phillips testified that this

means the pool must be entirely flush with the ground, but there is no

written definition in the covenants to that effect. In their responses to

the interrogatories, the Naborses pointed out that the pool was "of an in

ground nature" because it was three feet in the ground at some points.

Regarding permission from the architectural-review committee to

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build the pool, William testified that, before the pool was built, he had

discussed the pool with Phillips and that Phillips had told him that the

pool was fine so long as the pool was behind the privacy fence. Phillips

testified that he did not mind the pool, but he denied that he had told

William that he could build whatever he wanted in his backyard so long

as it was covered by the privacy fence. Forson, who was on the POA board

after the pool was built, testified that he sometimes swam in the pool.

William testified that he orally informed the architectural-review

committee of the plan to build the pool and that he was informed that,

unless the committee contacted him within 30 days stating otherwise, he

could proceed with the pool. Counsel for the POA stipulated that the

covenants authorize a resident to proceed with construction if the

architectural-review committee does not respond to submitted plans

within 30 days. Paragraph 3.C. of the covenants provides, in pertinent

part: "In the event approval of such plans is neither granted nor denied

within thirty (30) days following receipt by the Architectural Review

Committee of the written request for approval, the provisions of these

sections and paragraph 3 shall be waived." Robertson-Phillips testified

that she had informed the POA and the architectural-review committee

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that the Naborses were building the pool and that no action was taken to

prevent the construction of the pool. No evidence was presented that the

committee sent the Naborses a cease-and-desist letter despite being

aware of the construction of the pool in 2017.

William met with the architectural-review committee seeking

approval for the pool in 2017, substantially performing under the

covenants, and no action was taken by the committee to prevent the

construction of the pool.

" 'Substantial performance of a contract does not

contemplate exact performance of every detail but

performance of all important parts.' [Mac Pon Co. v. Vinsant

Painting & Decorating Co., 423 So. 2d 216, 218 (Ala. 1982)].

'Whether a party has substantially performed a promise

under a contract is a question of fact to be determined from

the circumstances of each case.' Cobbs v. Fred Burgos Constr.

Co., 477 So. 2d 335, 338 (Ala. 1985)."

Superior Wall & Paver, LLC v. Gacek, 73 So. 3d 714, 721 (Ala. Civ. App.

2011). Substantial performance relating to a covenant requirement has

been found sufficient in other jurisdictions. See City of Gulfport v.

Wilson, 603 So. 2d 295, 299 (Miss. 1992) (holding that, although an

amendment to a restrictive covenant required a vote of subdivision

members, circulating a petition among members constituted substantial

compliance with the procedure); O'Neill-Marnecheck v. Val's Prop. Dev.

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CL-2025-0515

LLC, [Ms. 2023-CA-01110-COA, Mar. 24, 2026] ___ So. 3d ___ (Miss. Ct.

App. 2026) (holding that homeowners cured their breach of beginning

construction without submission to and approval by the architectural

committee when they submitted plans that substantially complied with

the covenants); Lyerly v. Malpass, 82 N.C. App. 224, 346 S.E.2d 254

(1986) (applying substantial-performance doctrine to covenants in

recorded subdivision plat and oral representations binding subdivision

developer to provide six-foot-deep channel).

Additionally, the trial court could have determined that the POA

was equitably estopped 3 from having the pool removed, as was asserted

by the Naborses as an affirmative defense to the POA's complaint. In

Hankins v. Crane, 979 So. 2d 801 (Ala. 2007), the plaintiffs had alleged

that the defendants' driveway that connected their house to a public road

wrongfully crossed a lot owned by the plaintiffs, who were the developers

3We recognize that the covenants provide that a failure by any party

to enforce a covenant shall not be deemed a "waiver or estoppel of the

right of any of the foregoing to enforce the same thereafter." Here, the

architectural-review committee, a party under the covenants, was silent

following its meeting with William regarding permission to construct the

pool. That silence was acted upon by the Naborses. The language used

in the covenant, i.e., the failure to enforce, is inapplicable here because

the nonaction following the request to build is deemed an approval by the

architectural-review committee after 30 days.

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of the subdivision. They also alleged that the defendants had placed two

mobile homes on another lot in the subdivision in violation of a

subdivision restriction. The trial court entered a summary judgment in

favor of the plaintiffs. On appeal, this court addressed, among other

things, whether the plaintiffs' claims were barred by the doctrine of

equitable estoppel. This court stated:

" 'In order for the doctrine of equitable

estoppel to apply, a party must demonstrate:

" ' " '(1) That "[t]he

person against whom

estoppel is asserted, who

usually must have

knowledge of the facts,

communicates something in

a misleading way, either by

words, conduct, or silence,

with the intention that the

communication will be

acted on;"

" ' " '(2) That "the

person seeking to assert

estoppel, who lacks

knowledge of the facts,

relies upon [the]

communication;" and

" ' " '(3) That "the

person relying would be

harmed materially if the

actor is later permitted to

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CL-2025-0515

assert a claim inconsistent

with his earlier conduct." '

" ' " Lambert v. Mail Handlers Benefit

Plan, 682 So. 2d 61, 64 (Ala. 1996),

quoting General Electric Credit Corp.

v. Strickland Div. of Rebel Lumber Co.,

437 So. 2d 1240, 1243 (Ala.1983)."

" 'Allen v. Bennett, 823 So. 2d 679, 685 (Ala. 2001).'

" 'BSI Rentals, Inc. v. Wendt, 893 So. 2d 1184, 1187-88 (Ala.

Civ. App. 2004).

" 'Estoppel ... requires activity both by the

plaintiff and by the defendant. The plaintiff must

have acted so as to evidence an intent not to

enforce his rights under the restrictive covenant

and the defendant must have acted in reliance

upon plaintiff's conduct so as to make it

inequitable for the plaintiff to assert his rights.'

"Tubbs v. Brandon, 374 So. 2d 1358, 1361 (Ala. 1979)."

Hankins, 979 So. 2d at 810-11. Here, William and his son attended a

meeting of the architectural-review committee and asked for permission

to build the pool. There was no follow up from the committee before 30

days had elapsed. The POA was aware of the construction of the pool in

2017 based on Robertson-Phillips's testimony. No cease-and-desist letter

was sent to the Naborses regarding the pool. Lastly, there was evidence

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CL-2025-0515

of material harm to the Naborses' son's development and safety in

seeking to now remove the pool.

In contrast to the aspect of the judgment concerning the

construction of the pool, the trial court's judgment regarding the

construction of the concrete patio and the deck with a handrail is not

supported by the evidence. Robertson-Phillips testified that William had

not requested approval to build the patio. William testified that no one

told him that he needed approval from the architectural-review

committee to build the deck. On March 3, 2022, a cease-and-desist letter

was sent to the Naborses regarding the patio. William testified that the

patio had been completed at that time. William submitted a request on

March 12, 2022, through an email, seeking approval of the patio after it

had already been built. William testified that Forson, a former member

of the POA board, had approved the deck; however, Forson was not a

member of the architectural-review committee. Forson did recommend

that William install a handrail on the deck, and Forson testified that he

had told William that he could build the handrail so long as it did not

exceed the height of the fence. However, Forson clarified that he never

"approved" anything else.

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CL-2025-0515

The Naborses did not seek permission from the architectural-

review committee, in writing or otherwise, before constructing either the

patio or the deck with a handrail. Cease-and-desist letters were sent to

the Naborses regarding those construction projects. Paragraph 3 of the

covenants provides that the purpose of requiring prior written approval

from the architectural-review committee before certain improvements or

alterations is to "maintain such property as a pleasant and desirable

environment, to establish and preserve a harmonious design of the

community, and to protect and promote the value of the property." The

pertinent covenants in this case clearly express that actions involving

improvements affecting the appearance of the properties in the

subdivision require prior written approval by the committee. The

covenants provide that before construction of any "home, building,

gazebo, fence, garage, or any other structure or improvement of any

nature or addition" that is "erected, placed, attached to or altered" is

undertaken, "the proposed plans, specifications, exterior color and finish,

plot plan (showing proposed location of such home, building or structure,

drive and parking area), building height and grading, and drainage

plans" must be approved in writing by the architectural-review

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CL-2025-0515

committee. The Naborses failed to comply in any way with the covenants.

See Bramlett v. Dauphin Island Prop. Owners Ass'n, 565 So. 2d 216 (Ala.

1990) (requiring building-permit holder to obtain approval of amendment

to construction plans before building boat lift, which had not been part of

the originally approved construction plans); Esfahani v. Steelwood Prop.

Owners' Ass'n, Inc., 271 So. 3d 839 (Ala. Civ. App. 2018) (holding that

homeowner's installation of palm trees breached subdivision's restrictive

covenants when the covenants required approval to make any

landscaping alterations).

Conclusion

The judgment of the trial court is affirmed as to the POA's claim

that the pool should be removed. Because the patio and the deck violate

the covenants governing the subdivision, the judgment of the trial court

regarding those additions is reversed. The cause is remanded for

proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Edwards, Hanson, Fridy, and Bowden, JJ., concur.

Moore, P.J., concurs in the result, without opinion.

30