Exterior improvement definition

Our Declaration of Conenants, Conditions and Restrictions states the following:

"No dwelling, building structure, fencing, exterior painting (excluding repainting in
the same color) or exterior improvement of any type or kind (excluding landscaping) shall be
constructed or placed on any Lot without the prior written approval of the Committee."

I have always felt that the "any type or kind" language covered anything that someone would attach to the exterior of their house, including decorative items. I have received a differing opinion that exterior improvements include items such as painting trim a different color, but things such as an old rusty sign attached to the porch of a house are not included. I would appreciate any feedback on how "exterior improvements" are defined by others. Any case law that would assist would be wonderful.
Thanks

(Wearing my ex-Realtor hat now)

I agree with Janet that this is an ambiguously written rule. Ordinarily, an "exterior improvement" refers to an alteration in the real property, in that if the property were to be sold, the improvement would be transferred along with the title.

A sign that is attached to a building with nails or screws would qualify in some states as real property, while one that is merely hung on a building would not.

Rob

(Wearing my Architectural Control Committee chair hat now)

That's pretty clear. If the only signs homeowners are allowed to display are those advertising a unit for sale or for rent, then any other sign is disallowed.

Rob

Decorative or not unless the sign is a "For Sale" sign, it is probably covered under the sign clause of the CC&R's.

Hi Rob:

I believe this is the one I was refering to earlier off the top of my head.

38-33.3-123. Enforcement - limitation.

(2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

Hi Rob:

I love a good debate ... I would debate that because of the words "maintained to enforce the terms of" as noted below would potentially qualify as to loosing the right to enforce on anyone. Of course I agree with you that if they violate any local ordinance with regards to as you state a shed, then that would fall under said local ordinance violation. It would not be equitable within a subdivision to allow for one and not for all, which is why it could be important to be sure and enforce any rules an HOA wants to have in place.

(2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

Hi Scott ... In that case I agree with Rob and Glen that your HOA sign ordinance would cover this issue.

Hi Rob:

I have not found any CO case law yet regarding this issue. I know of a possible future case that might come up … I’ll have to ask the person what is happening when I get a chance.

Did find this information here:
http://www.ocrhlaw.com/library/Enforcement_of_Covenants_Rules_Architectural_Standards_and_Guidelines.pdf

The second group of defenses includes:

• Estoppel;
• Laches;
• Waiver; and
• Statute of limitations.

The defenses in this group deal directly with the association's (or plaintiff's) actions
or inactions prior to or during the time of the alleged violation. Those actions, if
they can be reasonably interpreted to conclude that they lead an owner, acting in
good faith, to believe what he or she is doing does not violate a rule or covenant
may present a viable defense.

Statute of Limitations on Building Restrictions. Colorado law (C.R.S. § 38-33.3-
123) imposes a one year statute of limitations on actions brought to enforce the
terms of any building restriction or compel the removal of any building or
improvement on land. The complete statute follows:

“Based on this statute, no lawsuit may be brought after one year
from the date the Association knew or should have known of the
building restriction violation. It is not sufficient to send a letter
demanding removal or compliance, but rather an actual lawsuit
must be filed within the one year window. However, the lawsuit
does not necessarily need to be served on the defendant within
the one year statute of limitations.”

Statute of limitations on use violations. Each day that a use violation occurs has
been considered a new violation. Based on court rulings to this effect, the statute
of limitations begins to run on the last day the use violation occurs. Yet, unlike
covenant and rule violations involving buildings or improvements, there is no
statute of limitations specific to common interest communities for enforcing a use
violation, so the nature of the claim provides for guidance on the applicable statute
of limitations. Covenants, and the rules passed through the authority of the
covenants, are based on contract theory, meaning that, without a statute specific
to common interest communities, the courts treat covenants similarly to contracts.
Covenant enforcement actions which are analogous to breach of contract actions
are held to the statute of limitations for contracts, which is three years. Covenants
and rules may also result in a claim which is more analogous to a negligence
action, which is two years.

It is still the wording in the statute as follows:
1. Shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations.

If you can no longer maintain to enforce … then do you not think that would make it null and void?

Maybe I’ll see what our attorney says regarding the interpretation.

Here is a FL arbitration that found:
The “association had engaged in selective enforcement” regarding storage shed.
http://www.myfloridalicense.com/dbpr/lsc/arbitration/allorders/2004003548r.pdf

Again, thanks for the feedback on the sign issue. One more issue that this brings up is the violator claims that we should go after everyone that has small welcome signs and security signs also if we are going to pursue him. Until this issue arose, we never even considered that those items might be violations, since they are very obscure in our neighborhood. To this day, I still have not seen one of the welcome signs (we have always relied on the management company to find violations and to look into complaints). I know that from the standpoint of a tiny welcome sign, it would feel awkward to step into court and try to explain why the board feels a homeowner should be required to remove something so insignificant that makes the property more appealing. So, are we practicing selective enforcement if we take the position that there is a clear difference between a tiny welcome or security sign and an old 3-4 foot rusty metal sign that a homeowner tacked up to his front porch as a decoration? Another way to put it, can we split these up into two categories and enforce against all similar signs as the one in question and ignore the others that are clearly in a different category?

Scott ... Rob is right you need to amend first.

By the way as it may help you never stated what the rusty old sign says or is representing. Sometimes this helps think outside the box.

Janet,
The sign is an old Dayton Tires sign.

Hey Rob you are getting a little ahead of yourself ... check this one out:

http://www.imakenews.com/ortenhindman/e_article000287100.cfm

The court did allow the owner to keep his hot tub and double gate, however, because no lawsuit was filed to enforce those building restrictions within one year.

This still leaves our question of whether or not the rule can now be enforced against other homeowners, due to the HOA failing to enforce and file suit.

For one to get a reprieve of breaking the rule, but no one else can ... there would be loopholes as time goes on with regards to who is allowed to break what rules and who must follow rules. Especially in an HOA where rules are not properly enforced.

This might even be a question for the new Colorado agency: HOA Information Office and Resource Center. Later maybe I will call Hollis Glenn and ask our question.

You have to be kidding me ... why would a HO want this type of sign in his front yard.

Every neighborhood has one. He is ours. If I look down our street, I believe he has had conflict with 12 out of 15 homes since our neighborhood was built a decade ago. He is constantly in a battle with someone. I have never met someone who actually goes out of their was to cause trouble like this guy does.

I would recommend following your current sign rule for ALL homeowners. Then if your HOA desires they can amend the documents to allow certain signs such as "no solicitation", etc.

This way there is no issue that everyone is not following the same rules and avoid legal battles.

That will depend on your State Statutes: http://www.in.gov/legislative/ic/code/

Title 23 – Article 17: Are statutes regarding the Non-Profit Corporation
Title 32 – Article 25.5: Are statutes regarding Homeowner’s Associations

You will want to read through these and become familiar, along with all your other governing documents.

The issue you could potentially face in not enforcing CCR’s is possible legal litigation especially rules that are not equally applied. If you do not want to enforce something, then documents should be amended to remove the item, this will insure someone does not potentially sue the HOA for not enforcing. However, to amend will require membership vote so the majority will also need to agree with the changes.

Our CCR's also contain the below language. Again, it contains language to protect the Association from legal damages, but that does not answer questions about the risk involved in picking and choosing which rules to enforce. I also wonder if the language would actually stand up in court. To me, it seems a board should be viewed as having a fiduciary responsibility to enforce rules in manner that is fair to all homeowner's. The only way to do that is to enforce all rules consistently.

Violation or threatened violation of these covenants and restrictions shall be grounds for an action by the
Developer, Association, any person or entity have any right, title or interest in the real estate (or any part
thereof) and all persons or entities claiming under them against the person or entity violating or threatening
to violate any such covenants or restrictions. Available relief in any such action shall include recovery of
damages or other sums due for such violation, injunctive relief against any such violation or threatened
violation, declaratory relief and the recovery costs and attorneys' fees incurred by any party successfully
enforcing these covenants and restrictions, provided, however, that neither the Developer nor the
Association shall be liable for damages or any kind to any person for failing to enforce or carry out such
covenants and restrictions.