Why the patio and deck did not

On the concrete patio and the raised deck with a handrail, the court reversed. The contrast is instructive because it is entirely about paper trail.

The association's witness testified the owner had not requested approval for the patio. A cease-and-desist letter was sent, on March 3, 2022 — by which time, on the owner's own testimony, the patio was already complete. The owner then emailed a request for approval on March 12, 2022, after the fact.

On the deck, the owner testified that a man named Forson had approved it. Forson was a former member of the POA board — not a member of the architectural-review committee. Forson recommended a handrail and said it could be built so long as it did not exceed the fence height, but, in the court's words, “clarified that he never ‘approved’ anything else.”

The court's conclusion was flat: “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,” and “failed to comply in any way with the covenants.” It cited Bramlett v. Dauphin Island Property Owners Association, 565 So. 2d 216 (Ala. 1990), where a building-permit holder had to get approval of an amendment before building a boat lift, and Esfahani v. Steelwood Property Owners' Association, 271 So. 3d 839 (Ala. Civ. App. 2018), where installing palm trees breached a covenant requiring approval for landscaping alterations.

What it changes for boards and managers

Read together, the two halves of this judgment are a description of how an architectural-review covenant is actually won or lost in Alabama, and almost none of it happens at trial.

Silence is expensive. The committee received a request for the pool and did not respond within 30 days. Five years later the association could not undo it. Whatever an association's governing documents say about the effect of non-response, an unanswered request plus years of visible construction plus no enforcement letter is a difficult record to appeal from.

The cease-and-desist letter is doing more work than it looks like. The patio drew one and the pool did not, and that is the clearest single line between the two outcomes. The letter is what converts an association's knowledge of a violation into a position it has actually asserted.

Only the committee can approve. A former board member's blessing was worth nothing, even though he was a real officer of the association, gave real advice, and set a real condition about height. Owners rely on that kind of conversation constantly. An association that routes every enquiry back to the committee in writing is covered when it is raised.

An anti-waiver clause is not self-executing. The association argued, correctly as a matter of covenant text, that failure to enforce does not waive the right to enforce later. It still lost the pool. The clause did not rescue a five-year record of knowing and doing nothing.

What the owners lost by not pleading

The relative-hardship point is worth separating out, because it is the second Alabama decision in a year to turn on it. The Supreme Court of Alabama reversed an injunction on relative-hardship grounds in Englund v. Dauphin Island Property Owners Association in August 2025, and in Dendy v. Ryan in December 2025 a justice questioned whether the doctrine should be an affirmative defense at all — precisely because the pleading burden can decide cases.

Here it may well have. The court noted the evidence of harm to the son's development and safety when discussing the pool, which is hardship-shaped evidence; it simply was not available as a defense to the patio and deck, because it was never pleaded and the trial court's exclusion of the testimony went unchallenged.

What to watch next

The case was remanded “for proceedings consistent with this opinion,” which means the trial court must now enforce the covenants as to the patio and the raised deck. What that enforcement looks like in practice — removal, or a belated approval on conditions — is for the circuit court.

The slip opinion carries the standard notice that it is “subject to formal revision before publication in the advance sheets of Southern Reporter.” We have found no subsequent history for CL-2025-0515.