Q. We live in a homeowner association and I have just been appointed to the architectural control committee. Some of the homeowners do not want such a committee, and many owners just ignore the process when they make exterior changes.
Our declaration of covenants requires advance approval before any such changes or additions can be made. Many people do not understand the concept of belonging to an association and when we try to explain, they become hostile.
How do we get homeowners to understand that this is not unique to our development?
A. Most community associations throughout the country have some form of architectural review committee. Although the scope of these committees varies, the general theme is that in order to keep some semblance of uniformity and balance within the association, unit owners must receive advance approval from a committee before any exterior work is done.
However, many owners — whether in a condominium, planned unit development or homeowner’s association — believe this requirement creates an unnecessary, time-consuming — and often expensive — burden. Many homeowners have also had negative experiences with their architectural control committees; we have all read of the cases where these committees acted arbitrarily and without any common sense.
However, design review within an association has at least two purposes: to establish and preserve a harmonious design for a community and to protect the value of the property.
When one buys into a community association, one must understand that it is community living. Decisions cannot be unilaterally made, nor can the rules and regulations of the association be unilaterally ignored.
One might disagree with the need for external uniformity, for example, but the fact remains that if the association documents require external uniformity, that is the law of the association and is binding on its members. You should read your association documents carefully – preferably before you buy — to learn the scope and purpose of the architectural review committee.
Having discussed the function and purpose of architectural controls, however, the architectural control committee must recognize that it cannot be a dictator, arbitrarily rendering decisions.
Courts that have addressed architectural review cases have made it clear that covenants are valid and enforceable so long as there are clear, written guidelines spelling out the overall standards. For example, it is not enough to say that owners may not make changes to the exterior without first obtaining the written approval of the architectural control committee.
If specific guidelines have not been developed, nor circulated to all homeowners, neither the unit owner nor the review board will have any objective standards by which to judge the proposed external change. And without such standards, even the most well-intentioned committee can be accused of being arbitrary.
Boards of directors (or the committee itself) must establish fairly specific guidelines, and if those rules are not already in your association documents, they should be drafted and approved by a majority of the homeowners.
You should also be aware that the following will be valid defenses by a unit owner when the committee tries to seek enforcement of the architectural standards:
• Arbitrary and capricious actions have been taken. The architectural standards must be applied fairly and consistently, and in good faith.and if something occurs in a unit (such as a pipe bursts that only serves that unit) the owner is obligated to pay the condo deductible, regardless of fault. (Section 5)
It is improper for the architectural review committee to pick and choose the enforcement of the covenants.
• Delays, or “laches,” have occurred. This means that the committee has permitted a lengthy period of time to elapse before taking action against a unit owner. For example, one court ruled that a board’s six-month delay in filing suit against an unauthorized fence barred the board from enforcing the covenants.
If a unit owner is in violation of the architectural standards, or at least the committee believes there is a violation, prompt action must be taken to assure compliance with the standards.
• A waiver has been granted. Basically, if the committee fails to enforce a covenant in the case of one homeowner in similar situations, it may be prohibited from enforcing those same standards against another homeowner.
• Often, the association documents require that the committee make a decision within a specified period of time (for example 60 days from receiving the request) or the request “will be deemed to have been approved.” Since you are on the committee, make sure you read your documents and follow the language carefully. If you must act on an owner’s request within 60 days, it is not acceptable to reject the owner on the 62nd day.
All too often, architectural control committees have been accused of asserting dictatorial powers. Indeed, in one large local community, the architectural control committee has been referred to as the “KGB.” According to one report, committee members were often seen “prowling around the neighborhood with their clipboards, looking for violations.”
Often, architectural control committees become obsessed with minor, petty violations and lose sight of reality and common sense.
A considerable amount of money has been spent by both homeowners and boards of directors in litigation that should never have been brought.
Your committee must sit down with any homeowner who is alleged to have violated the architectural standards and try to work out an amicable resolution of the problem.
In the final analysis, architectural control committees must be firm — but must also be reasonable and flexible.