Architectural Control committee going after old issues

Started by JanH3 • 14 replies • 2750 views

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JanH3 (Florida)
Posts: 1

Posted:

We have a situation where our ACB is going out of its way to find non-compliance for things that date back 2-10 years old. I thought the charter for this committee was to address NEW requests for adds, changes, etc. Has anyone else had this problem? Is there any statute of limitations that might apply here?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jan,

It's rare that there is a statute of limitations on those type of things.

When I was on my Associations Architectural Committee, we discovered that the records were so bad that they simply couldn't be relied on. Therefore, we cleaned up the records and then inspected each and every lot. Anything that didn't have an approval on we asked that the owner either provide a copy of the previous approval, submit a new request (that may or may not be approved) or correct the issue to bring it into compliance with the covenants.

I offer that story to show that it can and does happen.

This is why it's best to comply with the covenants and get all approvals in writing and then keep the approvals.

My questions to you on the issue would be:

1) Did you make the change?
2) If the answer to #1 is yes, did you get prior approval?
3) If the answer to #2 is yes, then simply provide a copy of the approval.

If the answer to #1 is no, you may have some recourse depending on State statutes. Do you have a copy of the Associations disclosure package that you would have gotten when you purchased? If you do, look for anything that may say that there are no issues with the property. This can give you some backing when saying going to the ARB.

If the answer to #2 is no, then you were and are in violation of your covenants and need to comply. If the change may have been approved (i.e. isn't in violation of a restriction or covenant) then simply submit a new request for approval. If the change wouldn't have been approved because it is a violation of a restriction or covenant, then you need to correct the issue and bring it into compliance.

MikeL13 (South Carolina)
Posts: 83

Posted:

Jan, you may want to check your documents. Our By-Laws specifically state "The failure of the board to enforce any provision of the Declarations, By-Laws or any rule or regulation shall not be deemed a wavier of the right of the Board to do so thereafter".

That reads to me like the Board could enforce non-compliance of past issues.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JanH3 on 08/02/2014 12:00 PM
We have a situation where our ACB is going out of its way to find non-compliance for things that date back 2-10 years old. I thought the charter for this committee was to address NEW requests for adds, changes, etc. Has anyone else had this problem? Is there any statute of limitations that might apply here?

The powers and the duties of the ACB should be set out in your CC&R's. If the board is authorized to only review requests for new approvals then it would not have the power to go searching for past violations. A board does not normally have the power to assume additional powers not given to it by the original grantor.

That does not prevent others from doing that either as a homeowner or by the board itself.

You will need qualified legal advice for any specific situation. Statutes of limitations may apply. There are also some case-law suggesting that if something was built in open violation of covenants without objection that there may be grounds for allowing the violation to remain.

VictorL2 (CA)
Posts: 16

Posted:

I believe there is no statute of limitation on discovery of old violations. If the previous ACC had no knowledge of the violation, the new ACC can still address it. However, if you can prove that the old board had knowledge and allowed for the violation, it will weaken the current committee's ability to enforce that rule.

AnnH5 (Florida)
Posts: 304

Posted:

I think Larry is correct. It should not be the job of the ARB to go after violations. That responsibility lies with the Board of Directors. The ARB serves to review applications and approve or disapprove based on the covenants.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By AnnH5 on 08/02/2014 3:20 PM
I think Larry is correct. It should not be the job of the ARB to go after violations. That responsibility lies with the Board of Directors. The ARB serves to review applications and approve or disapprove based on the covenants.

Although I agree with you, many Associations have enforcement duties associated with the Architectural committee.

For us, it's in our CC&Rs (or at least this is the way our Boards have always interpreted it):

The Board of Directors of the Association shall appoint an Architectural Control Committee composed of three (3) or more representatives. The Architectural Control Committee is to assure that the property shall always be maintained in a manner: (i) providing for visual harmony and soundness of repair; (ii) avoiding activities deleterious to the aesthetic or property values of the Property; and (iii) promoting the general welfare and safety of the owners, such owners’ tenants and such owners’ (or tenants’) households or companies, guests, employees, customers, agents and invitees. The Architectural control Committee is responsible for approving or disapproving proposed design changes submitted by the Homeowners. In the event said Board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted with written notification of receipt by the Architectural Control Committee, approval will not be required and this Article will be deemed to have been fully complied with.

MarkM29 (Colorado)
Posts: 15

Posted:

I don't know if it is state specific or just written into our c,c,rs but we have a statue of limitations of 12 months.

I have seen some case-law as well where an unapproved "visible" change went to court and it was determined that the HOA had the capacity to see the non-compliance in a more timely manner than it did. The HOA lost based on this finding.

MarkM29 (Colorado)
Posts: 15

Posted:

GeorgeR8 (Arizona)
Posts: 182

Posted:

Quote:

Posted By MikeL13 on 08/02/2014 1:28 PM
Jan, you may want to check your documents. Our By-Laws specifically state "The failure of the board to enforce any provision of the Declarations, By-Laws or any rule or regulation shall not be deemed a wavier of the right of the Board to do so thereafter".

That reads to me like the Board could enforce non-compliance of past issues.

We have the same. As have other HOAs I've lived in.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

ditto

JohnB26 (South Carolina)
Posts: 1,001

Posted:

I have seen some case-law as well where an unapproved "visible" change went to court and it was determined that the HOA had the capacity to see the non-compliance in a more timely manner than it did. The HOA lost based on this finding.

FOOD FOR THOUGHT (not discussion):

What if a new homeowner who has just observed the violation of the Covenant(s) were to directly and individually bring suit for compliance?

"Oh, what a tangled web we weave, when we first practice to deceive."

KerryL1 (California)
Posts: 14,550

Posted:

Take a look at the thread started by "Fixer" a few days ago. In it I wrote:
"...there is a legal term, "the doctrine of laches." It basically says that if the board doesn't take action after xx numbers of years after noticing a violation, they cannot force you to correct it."

There also might be a statute of limitations time limit as Larry suggests.

But I'm not in the legal profession nor in your state, so you need professional advice.

I'm curious is the alleged violation yours, Jan ? What is it? Have you read your ACB's charter? Even if silent about old violations, your Board probably still has the power to try to remedy them as others have mentioned. But, again, see my above.

FredC13 (South Carolina)
Posts: 1

Posted:

It is not out of the ordinary for an ACC to go back in time. Sometimes there are past boards in power who were very liberal in their architectural duties with applications, approvals and enforcement. It is always wise for the homeowner, despite a lax ACC or board, to follow the rules in the governing documents.It is very common thinking for homeowners to believe that 'no one is going to tell them what to do". That attitude is a loser, since you willingly joined an HOA and you agreed to follow its rules. Bucking this part of the system can be very costly for the homeowner.
It is also a fact that in changing management companies you may find your file has no paperwork on your project. Always keep a file yourself and insist that proper paperwork be signed and kept in a safe place for your records. We are on our 3rd mgmt company in less than 10 years. A significant amount records were missing in the changeovers. This advice goes for boards as well. Relying on your mgmt company as your record keeper can be a big mistake.

LarryB13 (Arizona)
Posts: 4,099

Posted:

One of my standard suggestions is that whenever you receive approval from the association or one of its boards that you record it with whatever state or local agency normally records deeds. People loose their own records and boards loose theirs, also. Recording the approval makes it a public record and difficult for a later board to dispute what was approved.

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