HOA BOD Approving CCR Architectural Violations

Started by MarthaH1 • 21 replies • 2913 views

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MarthaH1 (Texas)
Posts: 24

Posted:

I live in a small HOA community in Texas. The community has fewer than 75 homeowners. The past and current BOD have allowed several architectural improvements that are disallowed by our CCRs to pass. The latest example is the BOD approving the construction of an outside shed by a Board member that clearly violates the use restrictions of our CCR (open eaves, concrete board construction, uneven staining as well as different colors on each side of the building). Article VIII, Section 1 of the Use Restrictions of the CCRs clearly states ".....The architecture of the (accessory type structure) buildings must compliment that of the residential building...". The houses in this community are all brick. It is my belief that this subpar construction was allowed by the Board because of the Board member's position. Article VII, Section 6 of the CCR states "The members of the (Architectural) Committee shall have no liability for the decisions made by them so long as such decisions are made in good faith and are not arbitrary or capricious. It is important to note that this is not the only violation of this nature, but it is the most egregious. In addition to these architectural violations, the common areas are in declining condition. The neighborhood is no longer as appealing as it once was.

My question is this - when I moved to this community, I had to sign a contract stating that I read and understood the CCRs and would abide by them. As the Board has consistently allowed violations to pass without retribution, has the Board defaulted on the contract? What are my rights as a homeowner? Our HOA dues goes up every year, yet the neighborhood is in poorer condition now than when I moved in. Can anyone with knowledge of Texas law help me in this matter?

JohnB26 (South Carolina)
Posts: 1,569

Posted:

the name of the person who can help you is: ATTORNEY

MarthaH1 (Texas)
Posts: 24

Posted:

Thank you for your reply. I am well aware that an attorney can help. My request here is to get some direction from someone (perhaps an attorney) that has experience in this matter.

SusanW1 (Michigan)
Posts: 5,202

Posted:

You list these very specific items: open eaves, concrete board construction, uneven staining as well as different colors on each side of the building.

and then quote a very general CCR that says, "must compliment . . ." - which is very vague.

Are those specific things in the CCRs?

If it ain't in writing, it does not exist, so look over your CCRs and bylaws and see just what and who has jurisdiction over this shed.

MarthaH1 (Texas)
Posts: 24

Posted:

All the houses in this neighborhood are brick. One of the original homeowners in this neighborhood had his out building constructed in the same fashion as his house, i.e., brick veneer, closed eaves, gutters, etc. This was the standard at one time. It is my understanding that at the time this neighborhood was constructed, the CCRs were diligently adhered to. My concern here is that the present Board has set dangerous precidents and will not be able to enforce code violations in the future. It is important to note that one may have a shed or other out building on their property that does not need to meet such high standards as long as it is not visible from the street.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Unless these "high standards" i.e. brick, etc. are stated in your CCRs, then the board has option to approve.

Do you have an ARC or building committee?

If this is important to you, work to re-define or upgrade the ARC committee's rules.

MarthaH1 (Texas)
Posts: 24

Posted:

Yes. There is an ARC in place. The CCRs specifically state that the architecture of the (out) buildings must compliment that of the residential building.

JenniferM10 (Illinois)
Posts: 97

Posted:

"Compliment" is vague, though. Especially if the homes are only brick front. Complimentary buildings don't have to match exactly.

Have you tried to be a part of the Architectural committee?

MarthaH1 (Texas)
Posts: 24

Posted:

I have not. At one time, there was an ARC in place and the Board arbitrarily dimissed all the members, stating that they disbanded it. Another one showed up later.

One part of the Use Restrictions states " The Committee shall have the right to diapprove any submitted plans that are not in compliance with this declaration if they are incomplete or if the Committee determines that such plans are deficient for any reason.

(a) The Committee may base its approval or disapproval on, among other things:

1) the architectural character of all proposed improvements, taking into consideration the aesthetic quality of any structure with respect to height, form, siding, exterior materisals and roofing materials (with regard to type, scale, texture, color and durability);

2) harmony of external design with improvements on other Lots.

3) relation of topography, grade, and finished ground elevation to that of adjoining Lots;

4) conformity of the drainage plan with the drainage plan for the entirety of the Subdivision;

5) Screening of mechanical and other installations;

6) extent and quality of landscape areas; and

7) compliance with the purpose and general plan, intnet and provisions of this Declarastion, including, without limitation, the location of and design and materials for retaining walls.

(b) an Owner desiring to construct or install any improvements on such Owner's Lot must submit to the Committee its Plans in duplicate, for such improvements that contain sufficient detail and information to show the following (the "Plans"):

1) general plans for the residence showing exterior shape and location, elevations, height, exterior materials, window locations, roofing and colors of all exterior surfaces;

2) lot grading for drainage;

3) retaining wall location, elevations and materials;

4) fencing location, elevations and materials;

5) driveway location and materials;

6) swimming pool(s);

7) landscaping;

8) other matters specifically required by the committee.

It is my understanding that plans were not submitted for approval; the building and fence were constructed; the Board approved the construction after the fact.

MarthaH1 (Texas)
Posts: 24

Posted:

To clarify, the homes are all at least 90% brick. This is an upscale neighborhood with larger than average wooded lots and a creek running through the neighborhood.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

I will be more specific:

If the BOD does not act on your signed complaint which you mailed them certified mail, return receipt requested,

then

perhaps they will repond to a letter from your ATTORNEY.

The only other option I see is a recall petition (assuming your fellow HOs agree)and your willingness to serve in their place(s).

SusanW1 (Michigan)
Posts: 5,202

Posted:

You said: It is my understanding that plans were not submitted for approval; the building and fence were constructed; the Board approved the construction after the fact.

Do you have the minutes of the meeting where this was discussed and motion passed to approve?

MarthaH1 (Texas)
Posts: 24

Posted:

No, I do not. Our annual homeowners meeting is later this month. I plan to ask for that information. I believe the proper procedures were not followed on this project, then we could work to get it corrected. Any thoughts?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Don't wait until the annual meeting. That is not the place to START this investigation of whether or not the board violated its own CCRS.

You have the right to see ALL minutes of the meeting. Request them from the board or your MC. Tell them what you are looking for (motion to approve this non-compliant building).

However, at the Annual Meeting you can ask the board to review with the Members the procedures for construction of outside buildings since you are seeing some buildings that do not "match" the high calibur look of the neighborhood. If need be, insist that an ad hoc committee be established to deal with the issue.

SusanW1 (Michigan)
Posts: 5,202

Posted:

MarthaH1 (Texas)
Posts: 24

Posted:

Thank you for your insight. That is sage advice and I will do that right away. Is a formal letter the best way to handle this, or is email ok?

MarthaH1 (Texas)
Posts: 24

Posted:

I did as you suggested and requested, in writing, the meeting minutes and the documentation used in the approval process of this building. I received a phone call from one board member. He told me that the management group was waiting to hear (the Board President's)"side of the story" on this issue. The written request was made on the 17th of this month and the annual meeting was held on the 20th. I tried to address this issue at the annual meeting, but the outgoing President refused to discuss it. I just sent a second request to the management company and the new Board (this time with the Article and Section number that gives me the legal right to obtain this information). I gave them until Monday, January 24th at 4 p.m. to comply. I'll have to see what happens then.

MarthaH1 (Texas)
Posts: 24

Posted:

Here is the response I received from the management group rep - my response to them follows. I need to know - how can a committee take under considerations for improvements, yet, have no meeting minutes? Are requests for improvements to properrty private and confidential? Aren't building permits public documents? Someone please help!

Hi M,
It was great meeting you tonight. I did receive your email dated January 17, 2011 and immediately sent it to the Board of Directors for review. I have passed this through legal counsel and have been advised this is private and confidential. Unfortunately, the information you are requesting is not included in the open book records as this pertains to an owners private and confidential information.

What is open to the membership, are the financials and minutes of the association. Individual homeowner files and documents are not a part of the open book policy. Also, I am not aware of any Architectural meeting minutes from prior years or the current year. If however, the committee were to keep minutes, then those could be included in the open book records. I hope this helps clear up any confusion on this matter.

On a side note, I recall (the President of the Board) stating the Architectural Committee was reviewing your concern, however at this time they have not resulted in a final conclusion. Please let me know if I can be of assistance in any other matter. Take care.

Sincerely,

(Management group Representative), PCAM, CMCA, AMS

___________________________________________________________________________

Thank you for your response, Stephanie. I take exception to your legal counsel's opinion that this information is private and confidential. The information I seek affects all the property owners of the HOA; I did not request any information that requires any financial or personal information to be given out. The CCR's are explicit in requirements for buildings on property. Article X, Section 10.02 clearly states "The membership register, book of accounts, minutes of meetings of the members, minutes of the meetings of the Board of Directors and committees shall be made available for inspection and copying by any Member of the Association...on written demand, stating the purpose of the demand, at any reasonable time..." If your legal counsel contends that such information is private and confidential, then all information pertaining to any committee's meeting minutes is private and confidential, which is not the case.

Again, I am respectfully requesting that these documents be made available to me no later than 4 p.m. Monday, January 24th.

Sincerely,

JanetB2 (Colorado)
Posts: 4,219

Posted:

Martha ... you are doing great!!! You are being very professional in standing up for your rights ... be sure to let us know the response. I commend you and wish you the best!!!

MarthaH1 (Texas)
Posts: 24

Posted:

Here is the contined conversation, via email -

Good morning M,
The minutes of the Board and committee’s are open records, with the exception of the Boards Executive Session minutes. What I can provide you are copies of the Board meeting minutes, however the ACC has not written any such committee meeting minutes that I am aware of to date. The 2010 Board meeting minutes can be found on the website at www.company name.com All prior minutes will be emailed to you. If you would like hard copies, I can provide those to you at a rate of $ .10 cents per page, which will be the cost for printing and copying and those monies will be deposited into the associations Operating account. Please advise how you would prefer the Board meeting minutes. (email or mail) Thank you again for your cooperation in this matter.

-S

That's ok, S. I just got off the phone with the City; it seems that the building does not comply with the city's code restrictions. Any building over 120sq' must, by law, have masonry (in this case, brick) siding and must withstand winds of over 170mph. I filed a code violation report with the city. The city also requires that a building of that size have a building permit issued before construction commences. As building permits are public record, the Board must show me said documentation, if it indeed exists. I fail to see how anything dealing with the CCR restrictions falls under Executive Committee, unless it is dealing with personal financial records. Your argument fails the "sniff test" here. We had the opportunity to deal with this violation in house; it is now in the hands of code enforcement.

M

Hi M,
I think that is great that you turned this into the city of _____, if it does not meet the building code standards. This is what I would have recommended to the Board as well, if we were to meet about this matter. The city building permits are “public records”, and it is up to the “homeowner” to request the permit from the city of Corinth, not the “association”. Your statement is still incorrect, the Board is not “required” to provide you with a homeowners personal records or the city permit. The owner is responsible for acquiring the permit and providing the necessary information to the city. You as the inquirer may request this information directly from the city of _____ at anytime.

I do not understand your “sniff test” comment as the information provided to you is true and correct. If you would like to speak with the associations attorney directly; at your cost, then I can provide you with his information so that you can understand the legality of “private and confidential” information in a homeowners association. Again, I appreciate your concern and I look forward to working with you to identify and resolve this matter.

Thank you again for your understanding and cooperation with ____and ______Homeowner’s Association, Inc.

-S

Here is where it gets good -

We elected new Board Members last night and the former pres and the secretary are now off the board. The former Pres. is scrambling to get documentation out to the Architectural Committee members. I received a phone call from one of the members- it seems the homeowner allegedly put in a request for action, but the Architectural Committee (on which the President was a member) failed to act upon the request within the 30 day time limit, which gave the homeowner (the Board Secretary) the ok to proceed without the Board reviewing it.

The new Board members are very interested in taking care of this fiasco.

MarthaH1 (Texas)
Posts: 24

Posted:

The new Board corrected the problem. The shed and fence now blend in with the community.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Martha:

Thank you for the update. You have just shown that while some issues may take a couple of months to resolve, working together with everyone can enable conformance with the legal documents.

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