“Should take into consideration views” is binding — and a $417,000 HOA fee award fell with it
“Should take into consideration views” is binding — and a $417,000 HOA fee award fell with it
2026-09-15 · Montana · Courts
What happened. A Montana architectural covenant that said a builder “should” consider neighbours' views turned out to be an obligation, not a suggestion — and the association that won on that question at summary judgment lost its fee award on appeal.
The decision
Waddell v. Studer, 2025 MT 269, docket DA 24-0632, decided November 25, 2025. Justice Gustafson wrote for the Court, with Justice Rice concurring in part and dissenting in part. Published and citable. On appeal from the Eighteenth Judicial District Court, Gallatin County (Hon. Peter B. Ohman), in a dispute involving the Summer Ridge Homeowners' Association.1
The covenant language
The declaration, recorded December 9, 1993, stated its purpose as “maintaining a uniform and stable value, character, architectural design, use, and development of the premises.” Two provisions were at issue:
Placement: “[p]lacement should take into consideration the location of roads and neighboring dwellings, with allowance for views and solar gains.”
Size and height: “[a]pproval of size and height shall take into consideration unusual designs, blocking views, and solar effects of existing dwellings.”
The district court read “should” as creating no obligation. The Supreme Court held that was incorrect:
“While ‘should’ ordinarily expresses discretion, its pairing here ‘with allowance for views and solar gains,’ within a covenant that has the declared purpose to preserve uniform value and character renders the term obligatory to the extent of requiring genuine, good faith consideration of neighboring impacts.”
The Court was careful about the limit: the covenants “do not require a mandatory ‘view easement’.” What they require is consideration, in good faith. And it held the covenants were not ambiguous in requiring it.
The fee award, and the sequencing trap it exposes
The district court had awarded the association $305,143.50 in fees plus $13,492.91 in costs, and the individual defendants $98,765.96 in fees plus $206.06 in costs — $417,608.37 in all — under a prevailing-party clause reading “In the event of any action to enforce these covenants, the prevailing party shall be entitled to costs and reasonable attorney's fees.”
With summary judgment reversed, the Court held “there is no longer a basis for the attorney fee award,” and stated the rule plainly:
“Any determination of ‘prevailing party’ must necessarily wait until the jury determines who wins this case.”
For a Montana board, that is the practical warning. A prevailing-party clause does not make an interim award safe. An association that collects a six-figure fee judgment at summary judgment holds it only as long as the judgment survives, and the direction of the money can reverse.
What this changes about architectural review
Three category-level shifts, and the first is the one boards will feel:
- Soft-worded design guidelines are not automatically advisory. A Montana declaration using “should,” “may consider,” or “take into consideration” can carry a binding duty when read against the declaration's stated purpose. Boards and committees that have treated that language as aspirational should expect the reading to be contested.
- The reviewable artifact is the process record, not the decision. Because the enforceable duty is genuine, good faith consideration, what matters in evidence is what the committee actually considered and how. A bare approval or a one-line denial is thinner than it used to be. Minutes that record the neighbouring dwellings looked at, the sight lines discussed, and the alternatives weighed are the response.
- Sufficiency goes to a jury. The Court held “whether that consideration was sufficient is … best left for a jury to determine” — which means an association cannot expect to resolve a contested review on summary judgment by pointing at the covenant's permissive verb.
Justice Rice's objection, and why it is worth reading
The partial dissent argues the Court converted “should” into the equivalent of mandatory language, stretched the meaning of “consider” beyond its plain sense, and — the structural point — that what a covenant requires is a question of law for the court, not a question to remand to a jury. A board reading the majority as settled law should note that the split is about exactly the issue an association would litigate next.
One procedural holding that will matter to somebody
The Court also adopted the federal merger rule: the unappealed denials of the temporary restraining order and preliminary injunction merged into the final judgment rather than becoming separately moot. Practical effect — an interlocutory injunction ruling need not be separately appealed to preserve the underlying legal interpretation for review.
Status
The “should” holding is final. The dispute is not: the case was remanded to Gallatin County for trial, and the prevailing-party question with it. Nothing here predicts how that trial comes out, and nothing here is guidance on any particular architectural decision.2
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