Something’s Gotta Give

Associations have architectural guidelines and rules for a reason.  Should you ever loosen your grip on restrictions?

No association wants to make national news for banning a 3-year-old from using sidewalk chalk.

But how do communities tread the fine line between upholding the rules that draw buyers to the association and being flexible as times change and individual issues arise?

A Naples, Fla., garden-style condominium for instance, banned trucks years ago in an attempt to prevent contractors’ commercial vehicles from flooding the community.  Since the rule was written, buying patterns changed, and trucks are no longer just the province of contractors.  Many families now drive sport utility vehicles or vans, which technically would be forbidden under the rule.  For that reason, the board stopped enforcement.

A Texas neighborhood without any lot lines also ran into a problem its rules didn’t address.  A Chinese family wanted to follow the principals of feng shui and bring sunlight into the house from one of the walls.  But the association rules barred windows on that side of the house, which was close to a neighbor.  A compromise was struck that allowed an opaque glass window.

And a Massachusetts condominium tried to enforce its rules and put limits on a proposed wheelchair ramp, only to lose in court because government disability law trumped its rules.  The association had to pay about six times more than it would have if it followed the disability law in the first place, says Gary Daddario, a member of CAI’s College of Community Association Lawyers (CCAL) and partner at Perkins & Anctil, which represents 700 associations in Massachusetts and New Hampshire.

Whether to relax rules raises questions of precedent, law and neighborhood harmony.  Three of the biggest causes of association board headaches are technological, social and legal changes that affect rules.

TECHNOLOGY

Especially for associations formed 30 or more years ago, technological changes can create issues the original association documents never anticipated.

Jeff Kutzer, CMCA, PCAM, president of the Colorado division of The Management Trust, says today’s furnaces need more vents than would be allowed under some association rules.  Another looming issue: electric cars.  If they become more popular, will associations need to create charging stations in common areas?  How will those costs be divided?

Associations also may not have thought to regulate wind-energy devices, but they could cause conflict if they become more popular, notes Kutzer, who manages 32 communities.  “Be open to the idea technology will change what’s going on,” he says.  “It’s incumbent on boards and managers to keep an eye out for what is changing.”

SOCIAL CHANGE

Architectural rules don’t always keep up with the pace of social change either.  After all, some of those rules were written decades ago, in an era when $10 was a stiff line and an effective deterrent.

Eric Damian Kelly, an urban planning professor at Ball State University and fellow at the American Institute of Certified Planners, says the Naples truck case was an example from his wife’s family condominium.

Kutzer says that’s a common issue: Many associations banned trucks more than half a ton before SUVs became popular as personal vehicles.  Some of Kutzer’s associations in Colorado have changed their rules to allow truck-like vehicles as long as they don’t have exterior commercial signs.

The nature of home businesses also has changed.  A worker sitting in his den pecking at a computer isn’t the sort of nuisance that was envisioned by restrictions on home businesses.  Operating a carpentry shop out of the garage is a different case.  “There are a lot of home businesses you’d never know were there,” Kutzer says.

Colorado law now requires associations to be reasonable about home businesses.  But that doesn’t completely tie an association’s hands.  Hidden Hills Townhomes in Centennial, for instance, was able to enforce its rules with a resident who received truckloads of boxes in an alley.

Styles change too, and with them, the availability of building products.  Associations that are locked in to a color scheme or particular building product by architectural guidelines may find the community looking dated.

At First Colony Community Association in Sugar Land, Texas, a house burned down in a neighborhood of red brick buildings.  The rules required rebuilding with red brick, but finding the right shade of red 25 years later would’ve been a challenge.  Vanessa Brown, property improvement manager of the large association, looked for compromise.

The association rewrote its architectural guidelines to allow rebuilt houses to white brick that would look nice enough to keep up property values.  “We can step away from our guidelines, but it’s always with some reasoning,” says Brown, who has been at First Colony for 16 years.

Most guidelines in First Colony are classic in their style, she says, but the compliance department gets the architectural committee to approve updated colors and materials every three to five years based on what’s available at supply stores.

LAW

Many associations also have found their regulations updated by state and federal laws.

Rules against flags, political signs, solar roof panels and hallway door displays all have gone by the wayside in some places – pre-empted by new laws.  The Telecommunications Act of 1996, for example, allows satellite dishes that might otherwise be banned by associations.

In Colorado, associations can’t enforce all their rules against energy-saving devices like solar panels, wind turbines or even clotheslines.  “Our state basically said, ‘People need to be more conscious of saving energy,’” Kutzer says.  “Homeowners associations can’t unreasonably restrict those things.”

The lesson: Create new rules that won’t comply with state law, or you won’t be able to enforce anything.  For instance, Kutzer says Colorado required clotheslines for energy-saving drying, but an association can still restrict residents from leaving their items out for days at a time.  And it’s better to make new standards on solar panels (so they aren’t visible from the street) than to ignore the issue.

That’s what an association in Arapaho, Colo., did.  The original ban on solar panels was in the CC&Rs, which are difficult to change.  But when state law superseded them, the architectural guidelines, which are easier to change, were amended.

In Florida, concern for the environment and water conservation led to legislation giving homeowners the ability to plant environmentally friendly landscaping.

A federal law settled many conflicts between homeowners and associations by allowing residents more leeway to fly American flags.  And political signs are becoming a hot area of developing law.  In a recent New Jersey case, a court decided that free-speech rights trumped association rules, points out Gary A. Poliakoff, a CCAL member and managing shareholder of Becker & Poliakoff in Fort Lauderdale, Fla.

Those sorts of individual rights also have led to laws, such as one in Florida that says residents can put religious symbols like wreaths and mezuzahs on doors.  Poliakoff recommends associations work with the new laws by passing reasonable restrictions, such as holiday decorations have to be removed within a specified amount of time after a holiday.

ADVICE

At First Colony in Texas, architectural-rule violations ride the tide of home improvement store sales.  A sale on lawn ornaments might lead to a rash of unauthorized fixtures.  The lure of spring flowers can mean overexcited owners yanking out shrubbery required to hide concrete foundations.

Brown says her architectural board likely won’t approve 3-gallon shrubs in place of the required 5-gallon shrubs because they don’t provide as much camouflage for the foundation.  But if an owner is allergic to ligustrum shrubs, the panel might give a green thumbs-up to wax myrtle instead.

Association experts say boards that are weighing their enforcement strategies should think about the priorities of their fellow owners and precedent, documentation and periodic reviews of the rules.

Many of the problems start with owners who but into associations without understanding the restrictions.  Brown has little patience for that excuse.  “People say, ‘I didn’t know.’ Well, now you know, and you have to follow the deed restrictions.”

Daddario, the New England attorney, worries about the silent majority of homeowners who want rules carefully enforced.  “The problem is, the people the association never hears from are the people who like and appreciate the association’s rules,” he says.

The first advice Daddario provides boards that are considering rules is to look at how much leeway the board has by examining how the restriction is written and whether it’s in the architectural guidelines, the CC&Rs or other regulations.  Typically, boards have some flexibility.

Poliakoff says associations also have to understand the needs of residents in a multicultural society.  “The associations need to be more flexible.  These are not prisons; they are residential communities.  Society does not enforce every code.”

But Kelly, who sits on the architectural review committee for the association at his Colorado vacation home, says boards should be transparent about what exceptions are allowed and shouldn’t just start allowing random waivers.  “Making up rules as you go along (is) really, really dangerous,” he warns.

Boards also must be careful when relaxing a rule because it can set off a domino effect.  “On its face, anybody’s request may seem reasonable and (insignificant),” Daddario says.

However, the sweet-natured owner who wants to flout the landscaping rules and plant decorative flowers instead of standard-issue evergreens could open a can of worms.  One Massachusetts townhome association once allowed an owner to plant flowers in the front yard, but it soon was swamped with requests for other exemptions, recalls Daddario.

Before long, the uniform look of the community was lost and fans of the old rules were angry.  The association backtracked and banned the front-yard flowers but built a community garden near the neighborhood entrance as a compromise.  “When you look at the request, your knee-jerk reaction was, ‘What trouble could that be?’” asks Daddario.  Months worth, as it turned out.

FAILURE TO ENFORCE

Poliakoff would like to see more states adopt common-interest housing laws that allow associations to waive enforcement on one set of rules without preventing them from enforcing other rules.  A board that doesn’t crack down on every holiday decoration, for instance, should not be endangering its rules on skylights or decks.

Many association experts warn that flexibility is one thing, but nonenforcement is another.  “Looking the other way is a tough path,” Daddario says, because not bothering to enforce a rule only works until a situation comes up that really needs enforcing.  “(Then) people have a legitimate defense if you waived the rule through lack of enforcement.”

At a mixed-use condominium in Colorado, the association board wanted to crack down on a business with a sign that was too big and the wrong color.  The business owners brought to court a video showing other signs that flouted the rules and argued they were being treated unfairly.

Daddario says that if not enforcing the rules voided them entirely, one lenient board could destroy an association’s documents for all time.  The Colorado court agreed and upheld the enforcement, but it was a reminder that associations can’t get lax.

UPDATES AND WAIVERS

Although Daddario says boards can enforce any type of restriction, one important difference is how different restrictions can be changed.  CC&Rs, for example, often require a supermajority of owner approval.  Architectural guidelines and other rules made by the board are much easier to change.

That’s why many association experts say broad rules should be in the CC&Rs, while more specific restrictions should be in rules that boards can amend.  For instance, CC&Rs might say that owners can use only approved paint colors, but the actual paint colors should be listed in the architectural guidelines so that they can be changed with style trends.

When boards approve waivers, it’s important to document why.  That protects the owner and the association because it explains why the board approved some changes and not others.

At First Colony, one builder working on his own home wanted to appease his wife and chose the same brick as the home next door – a violation of rules.  The neighborhood had to get a court order to stop him, but by then the house was built.  Under a compromise, the board required him to stucco two sides of the house near the neighbor and put up a trellis with magnolia vines.  Everything was put in writing so that if the house is sold, the new owners will be informed about the compromise and the brick color ban.

Brown recommends meticulous recordkeeping.  If an owner makes unauthorized changes, the board can show a waiver was never granted.

Associations also should review their architectural regulations periodically so they can keep up with the times and the needs of the community.

“Every three to five years it’s good to have a board or committee look at them.  There may be rules you’re not enforcing or rules you wish you were enforcing,” Kutzer says.  “If you can’t be consistent (in enforcement), maybe you need to revisit the rules.”

An ad hoc committee of architectural review members, board members and other homeowners could look at whether some rules are too hard to enforce or just aren’t important.  Homeowner input is critical, Kutzer says.  About half of the 32 communities he manages review rules every few years.  It’s not always easy to convince busy volunteers to take on another task, but it’s worth it, he says.

Poliakoff recommends associations spend their time and energy on important issues like delinquent assessments, maintenance and important architectural standards, not on minor rules violations, such as a shade of curtain that’s not quite white.

“You should have the rule of reasonableness,” Poliakoff says.  “Does the change really impact the character of the community, add a financial burden on the association or detract from property values?  If they don’t impact the community as a whole, be more flexible.”

By Tamara Lytle