Exterior Alteration

We have a situation that has come across my desk in which I am unsure of the extent to which HOA can enforce our decisions.
Homeowners submitted an Exterior Alteration for a fence in their back and side yard. The homeowners included descriptions, samples,
illustrations and attached a plat of their property highlighting where the fence would be placed. We (HOA) approved their application
and the homeowners installed the fence as they had decribed on their exterior alteration application.

Upon inspection of their fence it was discovered that it was not 15 feet from the front line of their house, which is a violation
of the standards. However we approve their alteration anyway, failing to note this when presented with their application - which we
approved.

The homeowners have given us legal reasons as to why they aren't required to make the fixes, which will be expensive to them, because
they claim "the doctorine of promissory estoppel" and that they acted in good faith upon our approval. They appear to have legal counsel.
They claim the fence was installed to the specifications they outlined in the approved exterior alteration request.
They claim the HOA can't be estopped from recinding it's approval at this point.

What do other HOA communities believe to be the right way to go in this matter? There are many issues to consider here.

Thank you,
Sharon

Sharon,

The association should take it as a lesson learned. Do your homework before granting approval or disapproval and visit the site.

Had an Association representative visited the site during construction, it would have been a different story. However, since the fence is already up and was approved by the Association the Board effectively gave a waiver for the fence.

My suggestions would be that the Association contact the homeowner, in writing, acknowledging that the Association did give approval. However, since the fence is outside the specifications of the guidelines that when the fence is in need of replacement it must be brought into the standards that exist at the time. Run it by your lawyer for proper wording.

SINCE YOU LIVE IN VA, you will need to make sure that your Architectural committee does it job in mentioning the waiver issue when the house is sold. Otherwise, per VA law - you just approved the fence forever for failure to disclose it.

Tim

"BOD has no authority to approve the fence/application request regardless of any defects which may be in the application"

This is true. However if the Board did approve it and the HO went ahead and installed the fence- whose financial
responsiblity would it be to pay for the necessary changes?

It was my understanding that the BOD is not required to notify the HO if their request has violations of a covenant or code
when the application comes in. The HO should know the covenants and codes.

Sharon,

In my opinion, since the Association approved the fence, I believe that the Association should have the financial responsibility of correcting it if they insist on it being changed.

Realistically, that would be a question that would have to be settled in a court of law and it could go either way.


I agree that the BOD should not comment on any city codes. This is the responsibility of the city who is the approving authority for building plans. The BOD/Association is the approving authority for building plans as it relates to their covenants.

Just as a city official takes the time to review submitted plans and ensure that they comply to local codes prior to issuing a building permit, an Association should take the time to review submitted plans and ensure that they comply to the covenants and guidelines prior to giving it's approval.

Any homeowner, individual or (whats the legal term, oh yeah)reasonable person would expect that once receiving approval from the approving authority that the submitted plans complied with the codes/covenants otherwise they would not have received approval.

Bottom line, The Association is at fault for approving plans they should not have approved. Yes the homeowner should have known the guidelines. Perhaps they did and a simple mistake happened when the plans were drawn up. That doesn't negate the fact that the Association also failed to catch the mistake. Even if the failure of catching the mistake was a mistake in and of itself.

The Associations mistake (one could use the word negligence) caused the owner damages if they were forced to remove the fence and make it comply with the guidelines/covenants. Therefore, the member would have a legal right to seek recovery of the damages. If this happens it would be the courts decision as to how much blame should be placed on each party for their mistake. However, if it ever gets that far, it won't matter who is at blame because the only winners will be the lawyers.

Tim

"If I recommend to the BOD to approve an alteration, and the HO follows the submitted plan to the letter, then the alteration stands - even if it violates a standard in our rules & regulations or CC&Rs..."

Fortunately in my community neither the BOD or any committee has the authority to waiver the CC&Rs.

It is fortunate that three people (of a 5 mem. BOD) cannot change my community's covenants.

As far as the issue at discussion: the OP stated it violated standards, and if the HO is not cooperative, the BOD has to either live with it by [covering their tracks and] issuing a waver or variance so no future action(s) can be caused to occur with this violation... OR... if the BOD insists the fence be made compliant then the burden is on them and they will likely have to seek a court order (and bear all expenses) to do so.

You said "...or CC&Rs" here:
"If I recommend to the BOD to approve an alteration, and the HO follows the submitted plan to the letter, then the alteration stands - even if it violates a standard in our rules & regulations or CC&Rs."

The CCRs (covenants, conditions, and restrictions) are registered with local govt. authorities and belong to the members in that only the members can grant "waivers" (i.e. ammend them).

Rules & Regs., Architectural Standards, etc. are typically created and thus controlled by the current BOD. In this case granting a waiver or variance is at thier pleasure (and would avoid any expenses BTW).

Our documents allow any homeowner to enforce the CCR's if they wish. I wonder how that would play out if another homeowner pursued the fence? If successful, would the homeowner's with the fence still have a case against the HOA? I would assume yes.

The below is from our CCR's. I believe it gives any homeowner the ability to enforce the CCR's on their own if they wish. I also know that I have read case law where homeowners took on an issue themselves.

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.

Rob,
Our documents also contain the below language, which I think makes it clear that individual owners can pursue violations.

4. Remedies.
A. In General. Any party to whose benefit these Restrictions inure, including Developer, any
Owner, the Association, or any applicable governmental authority, may proceed at law or
in equity to prevent the occurrence or continuation of any violation of these Restrictions,
but Developer or the Association shall not be liable for damages of any kind to any
person for failing either to enforce or carry out any of these Restrictions.

Hi Heather:

You stated: If a car is parked in the street and it is against the bylaws... a HO can have that persons car towed by calling a tow truck themselves. They dont need BOD to do that.

Question: If it is a “public street” and the car is potentially owned by someone not living in your HOA, they are not legally obligated to follow the HOA rules. If a HO has it towed, they could potentially incur legal liability and a lawsuit.

Just a heads up that everyone needs to be sure and check their local ordinances. I recently asked my local government officials a question regarding this issue because surrounding HOA’s are having parking on street HOA rule violations. The city consensus is if the HOA does not own the streets, then towing a properly registered, legally parked vehicle on a public street is not an option. If they do own and maintain the streets, then the HOA rules would apply and as the owner of the private property the vehicle could be towed by the HOA.

They also stated if someone filed a lawsuit, that they could enter into any such lawsuit as the owners of the public property to protect the rights of the citizens regarding the City owned property. This issue could be dependant on how far a local government entity will go with regards to fighting.