Community Living Requires Compliance

QUESTION: I live in a new townhouse development and am 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 exterior changes.

Our declaration of covenants specifies that approval is required before any such changes. Many people do not understand the meaning of belonging to an association and when we try to explain, they become hostile.

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 homeowner’s 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, these design reviews have 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.

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, arbitrarily rendering decisions.

The courts that have addressed architectural review cases have made it clear that 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 guidelines have been developed, neither the unit owner nor the review board will have any objective standards by which to judge the proposed external change.

Boards of directors must establish fairly specific guidelines, and if those rules are not already in association documents, they should be approved by a majority of the homeowners.

The directors also should be aware that the following will be valid defenses by a unit owner when the board 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.

It is improper for a board or its architectural review committee to pick and choose in the enforcement of the covenants.

--Delays have occurred. This means that the board 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 board believes there is a violation, the board must begin prompt action to assure compliance of the standards.

--A waiver has been granted. Basically, if the board fails to enforce a covenant in the case of one homeowner in similar situations, it may be prohibited from enforcing the same standards 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 as well.

A considerable amount of money has been spent by both homeowners and boards of directors in litigation that should never have been brought.

Boards 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 and their architectural control committees must be firm but must also be reasonable and flexible.