09/04/07: Full Disclosure Required Of Architectural Control Committee

Housing Counsel

By Benny L. Kass

Q: My husband and I live in a homeowner association that has a strong architectural control committee. We formally requested the opportunity to make modification to our property, but within the time limits imposed by our legal documents, our request was denied. We asked for an explanation, but were advised that the committee did not have to give us any reason for the denial.

Is the committee correct?

A: The short answer is “absolutely no”.

Let’s provide a bit of background. Many associations have some form of architectural requirements, often enforced by an architectural review committee. (ACC). This committee is appointed by the Board of Directors. Although the scope of these committees varies, the general idea is that in order to keep some semblance of uniformity and balance within the association, owners must receive advance approval from a committee before any work is done. Typically, in a condominium or cooperative, this would involve substantial renovation of the individual unit; in a home owner association, it would relate to exterior work – such as fences, trees or painting.

This is an area where there is no consensus. Many homeowners have had negative responses, especially where the committee members take an aggressive role and seek out every conceivable violation. These members are accused of walking around the community with binoculars and clipboards, writing down everything they believe to be wrong. In fact, some committees are referred to as the local KGB because of their activities.

Other owners – and community association advocates – believe that 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 all of your association documents carefully, to learn the scope and purpose of the architectural review committee.

Having discussed the function and purpose of architectural controls, however, boards of directors of community associations must also recognize that the architectural control committee cannot be a dictator, rendering unreasonable decisions.

There has been much litigation in the area of architectural controls. The courts have made it clear that covenants are valid and enforceable provided there are clear policy guidelines establishing the overall standards.

If no specific guidelines have been developed, neither the owner nor the review board will have any objective standards by which to judge the validity of the proposed external change. And without such standards, even the most well-intentioned committee can be accused of being arbitrary.

Case law throughout this country involving the decisions of these committees has developed a number of defenses which owners can use when faced with negative decisions.

For example:

• Arbitrary and capricious actions have been taken. The architectural standards must be applied fairly and consistently, across the board and in good faith.
  It is improper for a board or its architectural review committee to pick and choose the enforcement of the covenants or to go against some – but not all – of the owners.
• Delays have occurred. In legal terms, this is referred to as “laches” or “estoppel”. This means that the board has permitted a lengthy period of time to elapse before taking action against an 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.
• A waiver has been granted. Basically, if the board fails to enforce a covenant in the case of one owner in similar situations, it may be prohibited from enforcing the same standards against another owner.

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.”

In my opinion, you have added yet another defense: silence.

The Board – and its architectural control committee – has the obligation to act reasonably. If the committee refuses to tell you why they have rejected your proposal, it could be argued that their decision was based on factors other than “reasonableness”.

Indeed, if no reason is provided to you, what will the committee’s defense be should you decide to take the issue to court? Clearly, their silence will be considered by a judge to be arbitrary and capricious.

I could find no law on this subject in the Washington metropolitan area. However, in preparation for this column, I learned that in California, their laws specifically require that the committee state all reasons when they deny a homeowner’s application.

I suggest that you take this issue to your Board of Directors. They may not be aware of this issue, and have the authority to overrule the committee – or at least provide you with the reasons for the denial.

It is unfortunate that with all the negative press that community associations keep getting, that your committee has not been more responsive.