ACC Guidelines and CC&R's

I have been looking at our governing documents and notice that our ACC guidelines are a section of the CC&R's. Been reading posts and threads on this forum for a few years now and have realized that:

1.) CC&R's are Deed restrictions telling you what you can and cannot do with your property.
2.) That to change the CC&R's requires a lot of effort (votes, money and filing the new or revised deed restrictions with the county).
3.) The Board of directors cannot change the CC&R's for anyone (without doing the things in item #2 above).

So why is it that the Board or in some cases the ACC Committee can issue a variance to the ACC guidelines?

If the Guidelines are in the CC&R's doesn't that mean that any variance has to be voted on? Has to be noted and filed for that lot owner with the County??
The owner in almost all cases is making a permanent change to his property. A change that will pass on down to subsequent owners and is therefore something that needs to be noted in the deed, if it is a variance of the CC&R's.

The law says that any on=wner can sue any other owner to come into compliance with the CC&R's. But if the board is issuing variances to the ACC guidelines that are found in the CC&R's how can that be legal? The variances are not noted for the other members of the HOA and are never filed with the county to attach them to the Deed for the lot.

To me it seems there is a hole in the process. Seems to me that Variances are not allowed nor are they legal if the ACC Guidelines are in the CC&R's.

The agreement one makes when moving into an HOA is that they agree to the CC&R's. This is an adhesion contract in that you do not get to negotiate any of the terms of that contract.

In some ways, a variance is nothing more than selective enforcement since the CC&R's are not changed to reflect something and the variance is basically then an agreement between the HOA and the owner to not fine the owner for the violation. Since many CC&R's have the boiler plate statement that we can issue a variance to owner "A" and deny the same thing to owner "B" it becomes nothing more than selective enforcement and a violations of owner "B"'s civil rights.

With the above stated, I am curious as to what your thoughts are on the subject. My HOA has no issues related to this pending, there are no lawsuits. I am Just pondering based on reading my CC&R's and the my understanding of the law.

Though different wording than Richard's, the CC&R section that includes Variances in my HOA is in the larger section of the duties, etc. of the ACC. The ACC may approve variances with lot of caveats including very strong wording that a particular variance cannot be assumed to mean that such variance will be granted to other condos. Such variances must be recorded with the County Recorder.

We're twin tower high rises and no variances have been sought.

Is it possible, Fred, that a section on variances in your CC&Rs is in a different section than your ACC verbiage?

Fred

I haven't come across this as a PM, but I will tell you what I would do.

The variance should be recorded by the HOA, maybe through the PM and recorded against the individual property, not as an amendment. The cost to record must be borne by the homeowner and should be stated as such in the Architectural Application.

Richard,

I agree with all you said. I would say that one of the things for us is that the ACC Application is of local design and does not include anything about recording any variances.

Same with our governing documents, the section I quoted from is still the original language from when the governing documents were first created. Granted, it was probably an oversight back in 1981.

One of the issues I have seen in my HOA (can't speak for others) is that someone may have gotten a variance a long time ago. Then, as time goes on, newer Boards get seated and appoint new ACC members. Along comes one of these newer folks who have no idea about a person's prior variance and lo and behold, they write them up for something that the owner has a variance on.

It has happened a number of times in the last 13 years I have lived here. I see it as a problem that there is no master list of Variances that have been approved so that the MC can check any complaint about any address and determine whether there is a variance approved and on the books to curtail a non-compliance letter and create bad blood.

Seen it happen a where the Board attempted to fine someone for something that the person had a variance on. The person showed up at a meeting with his original documents transferred to him by the previous owner (very lucky that happened in this case) and he showed the Board the Signed copy of the variance. The matter was closed and no apology from the board for putting the Homeowner through the hell they put him through.

This points to other internal process problems we have in the HOA. Namely, that there is not a clear process where they check to verify if a complaint is truly a violation of the CC&R's.

Thanks,

If the application doesn't include verbiage about recording variances, you could include it on the approval. Include the fact that the recording is for their (and future owners of their property) protection.

I think your record keeping issues are very common among associations. I'm treasurer of my association and inherited a file box of records, some financial, some not. Some I feel are permanent, some not. For example, old power and water bills don't need to be kept forever. The secretary also has a box of records, but I don't know how far back. Hopefully we have minutes going way back. Someone else keeps the ARC records, but again, I don't know how far back. I would assume any approvals, and especially any variances, would be kept permanently, but I haven't looked.

I'd be interested to know how other associations with no office or storage space handle that issue.