Where do they get the authority to tell me what I can build?
The authority of an HOA Board or Architectural Review Committee to review plans prior to construction can typically be found in your HOA’s Covenants and Bylaws. In addition to your Covenants and Bylaws, many HOAs adopt Architectural rules or restrictions designed to help streamline the process. These rules may provide specific guidelines about what sorts of structures will be approved. For example, there may be limitations on height, color or setback requirements. Other rules are procedural, outlining a process for submitting plans, obtaining a hearing in front of the committee, or appealing an adverse decision to the Association Board of Directors.
Why is it important to observe your Governing Documents and Rules carefully?
With the recent downturn in the economy and plummeting real estate market, Architectural Review has become an increasingly contentious issue. Many aggrieved owners turn to the court system to resolve architectural review disputes. Lawsuits often arise in two contexts: either (1) an owner receives an adverse decision preventing him or her from building their dream home; or (2) A neighbor of the builder is unhappy with the structure going in next door and seeks to have construction halted. Occasionally, neighbors have sought to have an existing structure torn down for being in violation of the Association CCRs.
Architectural review litigation is highly unpleasant, costly and time consuming for HOAs.
What can my HOA do to prevent the disputes and resolve them quickly if they do come up?
1. Draft Written Rules to Supplement your Covenants. Many Covenants and Bylaw provisions relating to architectural review are ambiguous. For example: “No home built in the subdivision shall erect a nonconforming fence. That statement, without more, can be problematic and can lead to lawsuits. Many Homeowners Associations adopt rules or guidelines that clarify or interpret vague Architectural Standards. Carefully drafted rules often prevent disputes.
2. Enforce Your Rules Uniformly. Once your Homeowners Association has a clear set of rules in place, it is critical that the Board enforce them with every homeowner int he neighborhood, including the Board members themselves. Members are often more angry about “selective enforcement” than they are about having their plans denied. These owners may argue that the HOA denied their plans based on a set of rules that other neighbors violated without penalty. This is unfair to the members of the Association, and can undermine the Board’s ability to resolve the dispute. Worse still, it can affect your HOA’s ability to enforce other important rules and undermine the Board’s credibility.
3. Treat Everyone Fairly. Give a full and fair review of any an all plans and proposals for architectural changes. For example, if your neighborhood has established a rule requiring garage doors to be painted the darkest color on the house and an owner wants to vary that color scheme to keep up with the current trend in nearby neighborhoods, it may be time to reevaluate and update the approved neighborhood paint colors and scheme. Rather than arbitrarily deny a request, try to find a way to give homeowners something to be happy about. If you can’t approve their request “as is,” approve what you can and let them know what needs modification. Look for ways to make peace with your neighbors and to find an outcome that is satisfactory to them to avoid alienating neighbors, which often leads to other compliance issues down the road. Remember that each person’s home is an essential part of their self-expression and the situation can quickly get out of control when homeowners believe they are not being treated fairly.