“Authorized” does not mean “required”

The Fritchies' second argument was that even if the pool breached the setback, tearing it out was the wrong remedy, and that the circuit court had to balance the equities first. They pointed to Ark. Code Ann. § 18-11-501, enacted as Act 1380 of 1999, which provides that “[c]ircuit judges are authorized to exercise their discretion to balance the equities … in cases involving encroachment of interior setback lines in residential subdivision restrictive covenants.”

Act 1380 was passed against a specific target. Its emergency clause recites the legislature's finding that “[r]ecent court decisions appear to hold that any violation of such an interior setback restriction, no matter how slight, requires that the structure or part thereof built in violation … be removed,” producing “needless destruction of property.” The decision it had in mind was Clifford Family Ltd. Liability Co. v. Cox (1998).

The court held the statute did not do what the Fritchies needed it to do. “Authorized” means “sanctioned by authority; having or done with legal or official approval.” “It does not mean ‘required.’ If the General Assembly had intended to require circuit courts to balance the equities before issuing an injunction for violations of interior-setback restrictions, then it would have said so. But it did not.” Act 1380 “was not a complete repudiation of Clifford.”

So an Arkansas circuit judge may weigh the hardship of demolition against the harm of the encroachment — and may equally decline to, and order removal outright.

The holding that matters most: whose enforcement right is it?

The Fritchies' laches defence was that the right to enforce the setback had been lost through years of the POA's refusal to enforce other setback violations across the neighbourhood. It failed for a reason that is easy to state and easy to overlook: the POA was not the plaintiff. The Hearnes were, and the Hearnes had their own right to enforce.

Read alongside the association's reported assurance that it “had no problem” with the pool and that Mr Fritchie “did not need their approval,” the consequence is stark. In an Arkansas subdivision whose recorded instrument gives individual lot owners the right to enforce, an association's approval — formal or informal — is not a defence to a neighbour's suit. Nor is the association's own history of letting things slide.

What it changes in practice

For homeowners. A green light from an architectural committee or a board resolves your position with the association only. If the bill of assurance lets any owner sue — and many Arkansas instruments do — the people with standing to stop you are your neighbours, and they did not vote. Getting approval in writing does not change that; it changes only who you can complain to afterwards.

For boards and managers. Informal assurances are a liability twice over: they do not protect the owner, and they invite a claim against the association when the owner discovers as much after pouring concrete. A board that lacks authority to waive a setback should say that it lacks authority, rather than saying it has no objection.

For anyone relying on the strict-construction canon. Arkansas's pro-landowner rule is real but weaker than its reputation. Plain meaning is consulted first, dictionaries are fair game where the instrument is silent, and the rest of the document — plus rules and regulations adopted alongside it — will be read to show how a term was used. An owner arguing that an undefined word cannot bind them is not making the argument they think they are making.

And demolition is a live remedy. Arkansas has a statute that permits equity-balancing in interior-setback cases and no statute that requires it. Owners building close to a line should treat removal as the realistic downside, not the theoretical one. The same reasoning reaches fences and exterior work generally.

What to watch next

The footnote worth tracking is the court's treatment of Cochran v. Bentley (2007), where the supreme court refused to overrule Clifford and clarified that “Clifford does not dictate removal of a violating structure in every instance.” The panel distinguished Cochran as being about size and outbuilding restrictions rather than interior setbacks. How far that distinction holds — and whether an Arkansas court will use § 18-11-501 to decline removal on facts where the encroachment causes little measurable harm — is where this line of cases goes next.