Drawing a Line Between Condo Design Changes and Tyranny

Kass is a Washington lawyer and newspaper columnist specializing in real estate and tax matters

QUESTION: I live in a new townhouse development and serve on the architectural control committee. Some of the homeowners do not feel the need to go through our committee for approval before they make any interior changes.

Our declaration of covenants specifies that approval is required prior to any such exterior changes. A lot of people do not understand what belonging to an association means, and when we try to explain, they become hostile to us. Can you address this issue so homeowners can understand that this is not peculiar to our development but to associations in general?

ANSWER: Probably every community association has some form of architectural review committee. Often, an owner--whether in a condominium, planned unit development or homeowners association--wants to make exterior changes to his or her own unit, and feels that it is a burden to have to obtain prior approval from an architectural control committee.

However, the purpose of design review must be highlighted at the outset of this article. There are at least two functions for this design review. First, to establish and preserve a harmonious design for a community, and second to protect the value of the property in that community.

While there is no doubt that going before the architectural committee can be a burden, the positive benefits of this design review should also be kept in mind.

Several years ago, a Florida court summed up this problem as follows:

"Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not to be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be."

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.

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 an autocratic dictator, arbitrarily rendering decisions.

The courts that have addressed architectural review cases have made it quite clear that architectural covenants are valid and enforceable, provided there are clear policy guidelines establishing 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 board or the architectural control committee.

If no specific standards have been developed, neither the unit owner nor the review board will have any objective standard by which to measure the proposed external change. Boards of directors must establish fairly specific guidelines, and if the guidelines are not already in the association documents, they should be approved by a majority of the homeowners. Furthermore, the board of directors should be aware that the following will be valid defenses by a unit owner when the board of directors tries to seek enforcement of the architectural standards:

1--Arbitrary and capricious action. The architectural standards must be applied fairly and consistently, and in good faith. It is totally improper for a board of directors (or its architectural review committee) to pick and choose in the enforcement of the covenants. If a unit owner is in violation of the architectural standards (or at least the board believes there is a violation), the board must begin prompt action to assure compliance of the standards.

2--Laches. This means that the board has permitted a long time to elapse before taking action against a particular unit owner. One court has ruled that where the board waited six months in filing suit against an unauthorized fence that this gave the owner of that fence the defense of laches--and thus the board could not enforce the covenants under those circumstances.

3--Waiver or estoppel. These legal concepts mean basically that if the board fails to enforce a covenant against one homeowner, the board may be prohibited in a similar situation from enforcing the same standard against another homeowner.

Because this is community living, there has to be a give and take not only by the homeowner, but by the board of directors. All too often, architectural control boards have been accused of asserting dictatorial powers; indeed, in one large Washington community, the architectural control committee is openly referred to as the "KGB."

A careful balance must be drawn between enforcement of major and minor infractions. Often, boards of directors--or their architectural committees--become obsessed with minor, petty violations, and often lose sight of reality and harmony.

A considerable amount of money has been spent by both homeowners and boards of directors in litigation that should never have been brought. Boards of directors must sit down with the 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, boards of directors and their architectural control committees must be firm, but must also be reasonable and flexible.

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