Army Captain Sued by HOA Over Kids' Swing Set

May 5, 2012— -- Bill Fry never expected to come home from Afghanistan to find himself embroiled in a war with his neighborhood homeowners' association over a swing set for his kids.

Fry, 45, a captain with the Texas Army National Guard, and his wife, Candi, are being sued by the homeowners' association of their small Mineola, Texas neighborhood for building a swing set in their yard without submitting a proper application.

"It's a power trip,'' Fry said of the lawsuit by the homeowners association.

It all began back in early 2010 when Fry was preparing to leave for training away from his home in Texas. The Frys had wanted to do something for their four kids to soften the blow of his upcoming deployment to Afghanistan and decided to build them a swing set.

Candi Fry was granted what she thought was verbal approval to begin construction of the swing set from the chairman of the architectural committee of the Spring Lakes HOA. According to Bill Fry, Candi approached the chairman about the codes, covenants and restrictions involved, and was told "it was just a swing set, it was no big deal, just go ahead and build it," Bill Fry recounted.

The couple hired a contractor to build the $1,200 swing set, but while construction was underway, Fry said, Harold Lemmon, the senior trustee of the HOA, began questioning the couple about the project.

Fry said Lemmon, along with the head of the architectural committee, then cautioned the couple that neighbors might complain and if so, they might have to move the swing set. But the Frys were not told that they needed to submit plans, Fry said, and the construction proceeded.

Meanwhile, Fry was deployed to Afghanistan. When construction was nearly done, Candi Fry received a letter from Lemmon explaining that neighbors had complained about the swing set, which was built too close to the next door neighbor's property, and that it would have to be moved since it was visible from the street.

Candi Fry agreed to move the swing set if the HOA would cover half the moving costs, but the HOA refused, Bill Fry said, and Candi Fry was told that she would need to submit drawings of the swing set to the homeowners association.

But when both she and the contractor submitted the requested drawings, according to Bill Fry, the HOA said they weren't sufficient, and after a few rounds of letters between them, in which Candi tried to compromise, the HOA filed a lawsuit against Candi.

"It's unfortunate," said Fry, "because none of this had to go as far as it did."

In the lawsuit, the homeowners association is demanding that the swing set be removed and that the Frys pay for the association's legal fees, according to Lemmon, the senior trustee of the HOA.

The Frys, Lemmon said, had forged ahead with construction after they had been told to halt. The family also had asked the HOA to cover the entire cost of moving the swing set, he said, not half of that cost, as the Frys contend. In addition, he said that the Frys brought the lawsuit on themselves by hiring an attorney and routing communication through him.

As a World War II veteran, Lemmon said, he understands the family's need to provide a source of comfort for their kids during Fry's deployment.

"I'm not immune to the emotions of this," he said. "[But] if you break the rules, you broke the rules. You can't break the rules for your own personal reasons."

Lemmon added, "We don't have anything against a swing set. We don't have anything against the Frys. Hell, they're our neighbors."

Fry, however, doesn't see this as anything like neighborliness. He is steamed that the initial HOA lawsuit was filed against only his wife in what he sees as a way to get around the Servicemembers Civil Relief Act,which prevents service members from being sued while deployed.

The suit, Fry said, was later amended to include Fry.

If a lawsuit over a swing set sounds like a rare occurrence, think again, says Evan McKenzie, a political science professor at the University of Illinois at Chicago and author of the book "Privatopia: Homeowner Associations and the Rise of Residential Private Government."

Homeowners associations often find themselves at odds with individual owners over what may seem like private matters to the individuals, but become public issues in the tightly managed communities.

"People go in and they think they're talking to their neighbors," he said, but it doesn't matter what went down in the neighborly conversation in the driveway if the homeowner didn't follow the rules of the association.

"The moral of the story on this is, the owners really have to know what's in their (homeowners association) declaration," McKenzie said. "You cannot act like the rules and regulations are to be taken lightly. You have to read them, you have to understand them. If you don't like it, then you don't want to live in this type of housing."

Meanwhile, the Frys are still hoping to iron out a compromise so their kids can swing in the yard this summer.