Austin Brook and Austin Park Property Owners Association, Inc. v. Nabors, No. CL-2025-0515, 2026 WL 1615499 (Ala. Civ. App. June 5, 2026). The court (Edwards, Hanson, Fridy, and Bowden, JJ., concur; Moore, P.J., concurs in the result, without opinion) affirms in part and reverses in part the Baldwin Circuit Court’s judgment enforcing subdivision restrictive covenants requiring prior written approval from the architectural review committee. *1. The POA sued the Naborses over an unapproved pool (2017), concrete patio (2022), and raised deck with handrail (2023). The circuit court ordered the deck and railing to be concealed below the privacy fence and awarded the POA $6,053.02 plus $15,738 in attorneys' fees, but it refused to order removal of the pool. The POA appeals seeking removal of all three improvements. *1-4.
The court first holds that the relative-hardship defense cannot support the judgment because the Naborses never pleaded it and did not cross-appeal the exclusion of hardship testimony. *4–5.
As to the pool, the court affirms on three independent grounds. *7–9. First, the requirement that pools be of an “in ground nature” is ambiguous. The pool was partially inground, and covenants are strictly construed against the enforcing party. *7–8. Second, William Nabors substantially performed by presenting the pool plan to the committee in 2017. The committee's failure to respond within 30 days triggered a waiver provision, to which the POA's counsel stipulated. *8–9. Third, the POA could be equitably estopped. The Naborses relied on the committee's silence; the committee never sent a cease-and-desist letter regarding the pool, and removal would materially harm the Naborses' disabled son. *9. The covenants' anti-waiver clause is inapplicable because committee nonaction within 30 days operates as an approval, not a failure to enforce. *9.
As to the patio and deck, the court reverses. The Naborses sought no committee approval before construction, the committee sent cease-and-desist letters as to both, and the only alleged verbal approval came from individuals without committee authority. The covenants unambiguously require prior written approval for any “structure or improvement of any nature,” and the Naborses failed to comply in any way. *10.
Accordingly, the court affirms the circuit court’s judgment that the pool should not be removed, reverses the circuit court’s judgment regarding the deck and patio due to the covenant violations, and remands for proceedings consistent with the opinion. *10.