By Cliff Davis and Teddy Holtz
Spring is here and, after hours of inspiration from watching Fixer Upper, homeowners are ready to begin adding on or remodeling the exterior of their homes. On top of that, the recent winter storms have led to many having unexpected repairs, and owners might take the opportunity to do the full-scale remodel they have been dreaming of for years. But how can POAs ensure that owners do not move forward with a remodel or addition that is a detriment to the community? For answers, POAs, their board and community managers should turn to their architectural control guidelines.
What are Architectural Control Guidelines?
An association’s deed restrictions often lay the framework for the look and requirements of the homes in the neighborhood, but as time goes on, many specific issues may not have been contemplated during the initial phase of development or in the association’s restrictions. These issues can be addressed through architectural control guidelines (ACC). If the developer did not institute guidelines during its period of control, then the association should consider adopting a set of guidelines. These guidelines provide owners with information on the approved colors of exterior paint, fence requirements, landscaping requirements, the overall topography of the properties in the neighborhood and more. The guidelines should not contradict any existing restrictions, but they may help clarify certain restrictions for the homeowners. If your association does not have a set of guidelines in place or needs its current set of guidelines amended, you should consult with your association’s legal counsel to create or amend the set of guidelines to best correspond to the restrictions in the community.
Should You Have an Architectural Control Committee?
The deed restrictions in the majority of associations require approval of the board before owners may construct new improvements or make modifications to existing improvements. To ensure a smooth process, associations should create an application that requires the owner to provide details on the proposed construction including materials to be used, paint colors, if paint is being used, and a detailed drawing of the proposed modification and its location on the property. To effect a more efficient process, the application should be readily available to owners via the association’s website and/or included in the ACC guidelines, which would offer additional details on the process and procedures. For larger associations, the volunteer board may not be able to efficiently process all ACC applications. These associations should consider establishing an architectural control committee to process the applications and make its recommendations to the board. By establishing a committee, the association can maintain efficiency for the members of the community, while also establishing new positions for community members to become involved in the association process.
The Approval Process and Violations
Once the application reaches the board or ACC committee, the board or committee should move to respond to the application quickly. Many deed restrictions contain an automatic approval provision for any application not approved or denied within thirty (30) days of the board or committee receiving the application and thus the applications are deemed approved. These types of provisions are in place to protect owners from unreasonable delays in the construction process, but the provision can make it difficult for the association to take action if the process is not handled properly. Once the application is deemed approved it becomes extremely difficult, if not impossible, to require the owner to comply with the restrictions of the association. This could create a snowball effect where other owners attempt to construct modifications and improvements of a similar aesthetic and issues regarding waiver and abandonment of the restrictions may arise.
Once an application is received, it is important for the board or the committee to not wait for the full 30 days to respond, especially for applications that lack information on the proposed construction. By waiting the full 30 days, the board or committee may open itself to allegations of unreasonable delays. The board or committee should quickly deny the application and respond to the owner to provide more information.
On rare occasions, an application that would normally be denied may require a variance from the association. A variance should only be granted if the restrictions give the association specific authority to grant the variance, and these types of requests should be limited to situations where there is a hardship due to the particular nature of the property. An association that allows too many variances may also open itself up to allegations of waiver and abandonment of its restrictions. If you have questions as to whether your association can allow variances and if the situation warrants a variance, please consult your association’s legal counsel. In the event the association does grant a variance, the association’s legal counsel can ensure the variance is filed properly in the real property records.
After approving or denying an application, the association should pay close attention to the property for which the application was submitted to prevent unapproved or modified construction. In several instances, we have seen associations wait to take action against unapproved construction. As a result, judges and juries may be less likely to require an owner to undo or revise the construction. Compliance actions should be taken as soon as possible before the time, labor, money and materials expended by the owner become an issue. During the process of construction, a modification to the submitted design may become necessary. In these circumstances, the owner should follow the ACC guidelines, which may include resubmitting an application for approval, and the board or committee should work with the owner to ensure the request for modification is processed timely and compliant with the guidelines and restrictions of the association.
In extreme circumstances, it may be necessary for the association’s legal counsel to become involved. The attorney may be needed to send a cease and desist letter to the owner, and in more egregious situations, file a temporary restraining order against the owner to halt construction.
Responding to Homeowners with Delinquent Fines or Assessments
For some applications, the board or ACC committee may run into a situation where the applying owner is delinquent on fines or assessments. Currently, there is no precedent in case law or statute in which to guide a POA in its response. In the event of an application from an owner with delinquent fines or assessments, the association should look to its governing documents for clarity. If there is a provision in the association’s governing documents that allows the board or ACC committee to deny the application based on delinquent fines or assessments, then the board may do so. If there is no such provision in the governing documents, then the board or ACC committee should consider the application based only on the association’s ACC guidelines.
The ACC process is an important function of any POA. It ensures owners are able to make modifications and improvements to their property while abiding by the restrictions of the association. By maintaining a smooth ACC process, the association can ensure compliance is maintained and property values continue to increase for years to come.