07/06/2018 : Homeowners Association Rules Governing Exterior Changes Cannot Be Ignored

By Benny L. Kass

July 06, 2018

Q: We live in a homeowners 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 have some form of architectural review committee. Although the scope of the committee varies, the general idea is to keep some semblance of uniformity and balance within the association. 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 homeowners 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 cases where the committee 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 buying 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.

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One might disagree with the need for external uniformity, but the fact remains that if the association documents require external uniformity, that is the law of the association, and it is binding. You should read your association documents carefully to learn the scope and purpose of the architectural review committee.
The board of directors will also want to review any major construction within a unit, but this is not for aesthetic reasons. The board wants to make sure that licensed contractors are being used, that there is adequate insurance to cover any mishaps and that permits are in place, where applicable.
Although the function and purpose of architectural controls should be specific and limited, the architectural control committee cannot be a dictator, arbitrarily rendering decisions.
When addressing architectural review cases, the courts have made it clear that covenants are valid and enforceable, as long as the guidelines are clearly written and spell out the overall standards. It is not enough to say that owners may not make changes to the exterior without first obtaining written approval of the architectural control committee.

If specific guidelines have not been developed and circulated to all homeowners, neither the unit owner nor the review board will have any objective standards by which to judge the proposed change. And without such standards, even the most well intentioned committee can be accused of being arbitrary.
The board of directors (or the committee itself) must establish 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 an owner when the committee tries to enforce the architectural standards:

• Arbitrary and capricious actions taken in the past. The architectural standards must be applied fairly, consistently and in good faith.
  It is improper for the architectural review committee to pick and choose the enforcement of the covenants.
• Delays or “laches” have occurred. The committee must act swiftly and not allow a long time to elapse before taking action against an owner. 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 an owner is in violation of the architectural standards, or the committee believes a violation has occurred, prompt action must be taken to assure compliance with the standards.
  Association documents often require the committee to make a decision within a specified period of time (for example, 60 days after receiving the request) or the request “will be deemed to have been approved.” Make you read your documents and follow the language carefully. If the documents say you must act on an owner’s request within 60 days, you cannot reject the owner on the 62nd day.

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• A waiver has been granted. If the committee chooses not to enforce a covenant in the case of one homeowner in a similar situation, it may be prohibited from enforcing those same standards against another homeowner.
  All too often, architectural control committees have been accused of asserting dictatorial powers. 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, raincoats and dark glasses looking for violations.”

Architectural control committees can become obsessed with minor, petty violations and lose sight of reality and common sense.
A considerable amount of money has been spent by 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 to the problem.
In the end, architectural control committees must be firm — but they must also be reasonable and flexible.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. Send questions to [email protected] .