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legal precedent

Started by TedR1 • 17 replies • 2959 views

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TedR1 (Colorado)
Posts: 5
Posted:
In our HOA many years ago 4 different units were apparently given permission to enlarge their unit by eliminating their balcony (a limited common element) and moving the glass sliding door panel all the way out to the railing of the balcony. Each balcony can only be accessed through that individual unit. This alteration changes the appearance very slightly. A previous board saw no problem with owners doing this, however the present board has just denied permission for this to be done by a homeowner who has recently asked for permission to do the same.

Has a precedence been set by the previous board?
GlenL (Ohio)
Posts: 5,491
Posted:
IMHO no. The previous Board probably didn't have the authority to allow the modifications which may or may not be allowed by the zoning codes.
Studies show that 5 out of 4 people have problems with fractions
NpS (Pennsylvania)
Posts: 4,216
Posted:
How many units are there? How many had the alteration approved? Do you have access to the documents approving the alterations? Did the recent request include a reference to the prior approvals?
Sikubali jukumu. Read all posts at your own risk.
TedR1 (Colorado)
Posts: 5
Posted:
There are just under 100 units total (about 2/3 are timeshare units and 1/3 are whole owned units). This is located in Vail Colorado. Most of the timeshare owners own one week... thus probably only the whole owners would have any interest in making this alteration, since they are the only ones that truly own the entire unit.

4 units had the alteration approved. Records to not go back to approval for the 4 that made the change. No one knows when it was done... at least 20 years ago. The recent request did make reference to the fact that 4 had previously been given approval.
TedR1 (Colorado)
Posts: 5
Posted:
I suspect you are correct that the previous board did not have the authority... but has a precedent been set by that board? In a lawsuit does this person have a good case that he should be allowed to make the same changes.

I don't believe zoning codes are an issue.
NpS (Pennsylvania)
Posts: 4,216
Posted:
I doubt that there is any law that says a precedent has been set. So the question of legal precedent really doesn't fit.

On the other hand, there are various equitable principles (based on fairness) that a court would consider in determining whether a precedent has been set and that people can rely on.

In your case, 4 approvals out of less than 100 is not an insignificant number. The argument could be made that a precedent was established.

IMO, one thing could work for you and two things could work against you.

The thing that could work for you is the fact that the alterations are visible from the street. A person purchasing any unit could reasonably assume that what is visible is allowed.

The things that could work against you are that your rules may specifically disallow such alterations (best for you to read your docs thoroughly for anything about balcony alterations) and that you are 2/3 timeshare. (It is unlikely that you are going to get enough support from fellow owners to change things.)

I think the person who was rejected should first get a zoning permit for the change which will show that the proposed alterations will satisfy building codes. Then put together a package with pictures of the 4 modified units and a request for reconsideration. It would be perfectly ok to say that a precedent has been set, since that is what you believe to be the case.

It may be that the approval committee isn't even aware of how many were approved in the past. Laying out the issues to them could change their minds.

Good luck.

Sikubali jukumu. Read all posts at your own risk.
EllieD (Vermont)
Posts: 446
Posted:
TedR1,

Based on what you posted, I assume Condominiums. How does your Declaration, Documents, define “Limited Common”? And how is the Condo Unit defined, boundaries, etc.?

Is there a section that speaks to “who maintains” the Limited Common Area Balconies? And would you be willing to post that section also.

Also to help visualize, what type of building construction? Townhouse Style, Apartment Style, or?

You use the term “balcony”, so is it correct to assume that the balconies that have been enclosed, are second story or higher, or are they at ground level? And how enclosed. Mostly glass, or enclosed to match the building siding, and insulated, or?

Since you posted that there are no records showing approval to do this, and that this was probably done 20 years or so ago – is it possible that there was an amendment made to the Declaration to allow this?
JohnB26 (South Carolina)
Posts: 1,001
Posted:
? were building permits issued for the structural modification ?

? no ?

get a court order for the restoration to original

! slam - dunk !
TedR1 (Colorado)
Posts: 5
Posted:
Yes - Condominiums. it is a 4 story building constructed of concrete. The unit walls left and right extend 6 feet out to create the balcony beyond the glass panel with the sliding glass door. The railing is where the other units have extended to. All the units that have enclosed the balcony are located on the 3rd and 4th floors. The unit which was denied is also located on the 3rd floor.

We have the original decs and all amendments ...and there have been no changes in this area.

The section about limited common elements is very basic and refers to the map for location. On the map it shows "Balcony - Limited Common Element"

The maint for the balconies are done by the HOA (new railings, new carpeting, new painting, and replacement of glass in the sliding glass doors. Basic cleaning is done by the homeowners since there is no access to the balcony except through the unit.
TedR1 (Colorado)
Posts: 5
Posted:
no one knows if building permits were issued for the modifications from many years ago... but we suspect they were. Each owner is required to submit a request and plans to the HOA... and if the changes have been at all significant each homeowner has gotten a permit to our knowledge.

Some of these units have been sold and re-sold since the modifications were made... and we suspect each probably received permission in writing from a previous board. Not a slam dunk by any means.
JohnB26 (South Carolina)
Posts: 1,001
Posted:
the permit would have been issued to the OWNER

the owner of a limited use common area would be the HOA

hence the 'common area' in limited use common area

check with you local GOVERNMENT code compliance dept

(an architectural approval is NOT, repeat NOT, a building permit)
NpS (Pennsylvania)
Posts: 4,216
Posted:
Hi Ted

Could you provide the exact language from your docs that:

1. talks about the ability of a HO to make alterations to a limited common element.

2. talks about the approval/disapproval process for alteration requests and appeals.
Sikubali jukumu. Read all posts at your own risk.
JohnB26 (South Carolina)
Posts: 1,001
Posted:
Not a slam dunk by any means.


No signed off approved building permit showing a valid C of O = slam dunk court order to restore structure to 'as before'.

This is a public safety / public interest principle found in ALL state laws.

Code Compliance is NOT a joke.

Wind loads.

Fire egress / escape issues.

HVAC

Glass exposure by sliding doors.

Occupancy / use issues.

AND taxable valuation issues.

The HOA operates BELOW your local / county / state codes and law
GlenL (Ohio)
Posts: 5,491
Posted:
Plus it's much easier letting the bureaucrats be the bad guys.
Studies show that 5 out of 4 people have problems with fractions
JanetB2 (Colorado)
Posts: 4,219
Posted:
Ted:

You need to check with your local planning department and see if past changes were done legally. There should be on file a building permit for any units who made any changes.

If they were done legally then the homeowners are allowed to keep under CO law. In Colorado construction changes that violate the CCR's either the HOA or Owner's have one year to pursue via court of law for any contract issues violated that were legal and agreed to by the owners. However, violations do not necessarily set precedence. What may set any precedence is any BOD allowing the CCRs to be violated without significant reason ... The BOD should have considered if you allow for some (and if not violate building codes), then how can you deny others in future the same opportunity or choice?

This is a good example of why documents should be followed and if owners want something different they should follow proper procedures to amend the documents to allow for same changes for all owners vs the BOD just approving and not considering future consequences. Variances are meant to be for items necessary and mainly due to circumstances beyond anyone's control .., not just because you feel like giving a variance to your buddy or neighbor.
CharlesB20 (Colorado)
Posts: 15
Posted:
HOA executive boards do not establish precedent. Rather, precedent is established by the ruling bodies of civil governments and by the courts.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By CharlesB20 on 02/16/2015 7:12 AM
HOA executive boards do not establish precedent. Rather, precedent is established by the ruling bodies of civil governments and by the courts.


HOAs create the practices, procedures, customs, and behaviors that the courts recognize as precedential.
Sikubali jukumu. Read all posts at your own risk.
MarkM31 (Washington)
Posts: 556
Posted:
Quote:
Posted By NpS on 02/16/2015 7:38 AM
Posted By CharlesB20 on 02/16/2015 7:12 AM
HOA executive boards do not establish precedent. Rather, precedent is established by the ruling bodies of civil governments and by the courts.


HOAs create the practices, procedures, customs, and behaviors that the courts recognize as precedential.

That is correct, it isn't precedence, but is very similar.

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