HOA and ARC guidelines

Started by KetanP • 16 replies • 2977 views

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KetanP (Virginia)
Posts: 22

Posted:

Another Virginia HOA question. Does HOA have the right to change ARC guidelines without giving any notice to the homeowners. Is there any law that prohibits HOA from doing so when it is not explicitly written anywhere in my HOA governing docs or arc guidelines.

Thank you

KP

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ketan,

I don't recall if you are in an HOA or a COA.
This response is for HOA's.

Architectural guidelines are typically in the form of a Resolution.

Resolutions are formalized decisions of the Board.

There is no State requirement that advance notice be given about resolutions, only that once adopted, they must be published to the membership prior to being enforced. See § 55-513 (scroll down the page).

The good thing is that if you disagree with the changes, the membership may repeal or amend them. Per that same statute:

A majority of votes cast, in person or by proxy, at a meeting convened in accordance with the provisions of the association's bylaws and called for that purpose shall repeal or amend any rule or regulation adopted by the board of directors.

Now, do I think it's a good policy to amend architectural guidelines without input from the membership? No. In fact, our Association adopted a resolution that requires publication of the proposed changes and the requirement to hold a meeting for the purpose of receiving feedback and answering questions. However, our Association is not your Association.

Unless your Association has such a procedure to adopt and amend resolutions, then all that is needed is for it to be brought up at a Board meeting and receive a majority vote from the Board for approval. Once published to the members (via newsletter, direct mailing, etc.), the resolution is enforceable (unless there is a conflict between it and a higher precedence document).

KetanP (Virginia)
Posts: 22

Posted:

Hello Tim,

Thank you very much for the reply. My HOA rejected my arc application and gave me the following explanation.

We regret to inform you that the xxxx HOA Architectural Committee has declined your application with the following reasons:

The modification does not conform to the community standards. You must restore the front walkway to its original condition. You must notify xxx of your plans to correct the issue within 10 days from the date of this letter and the modification must be fully restored within 30 days from the date of this letter. A diagram of allowable concrete is attached to this letter and will also be emailed under separate cover. If you do not return the walkway to its original state then you will be called to a hearing with the Covenants Committee.

The diagram of allowable concrete, was never heard of. This is something the HOA board is doing to get back at me. There was no resolution passed or any discussions in an open forum with members of community. Is this legal. Can I challenge this legally. Can the board along with the arc committee decide and do something like this and apply it to a rejection notice as mention above and that too before approval. Is it good for me to hire a lawyer to respond to this...Please help.

Regards

KP

SheliaH (Indiana)
Posts: 6,964

Posted:

Why would the HOA board be "getting back at you" for this? Sounds like there's a backstory you need to address. Did you put in this concrete without getting something in writing from the Board saying it was ok? If you did, the board may be correct in requiring you to restore the area to its original condition.

You say there weren't any resolutions passed on this - how far back did you check the board meeting minutes (it may have been done a few years ago). You may need to request and review Board meeting minutes from the past 2-3 years to see if this issue had been addressed. You'll also have to check if your Board can enact additional rules (provided they don't conflict with the CCRs and Bylaws). For example, the CCRs may say the Board must pre-approve certain exterior changes and specify what those areas are, but the Board may pass resolutions on design standards(color, type of materials, etc.)

As Tim said, it's best to run design standard ideas past homeowners and get their opinions and suggestions before finalizing the requirements. Even then, the Board should consider if any homes wouldn't meet the new standards - generally, those are grandfathered in, but homeowners are told any subsequent changes must comply with the new standards. That's the fair way to address these issues, but of course, people are people and don't always play well with others

Anyway, before you run to court, check your CCRs to see if there's an appeals process and use that. You may also want to check if it has any requirements regarding concrete (maybe this Board realized they existed and are beginning to enforce that rule).

You might also ask if the Board would be willing to find an independent mediator or arbitrator to listen to both sides and render a decision (you and the Board would have to agree in advance to comply with that decision). You wouldn't necessarily need an attorney and the process could be cheaper and quicker than court. If however, you feel court is your only option, check if this could be held in Small claims court, where you wouldn't need an attorney.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

RichardP13 (California)
Posts: 3,868

Posted:

Ketan

I would ask the Board for the resolution or the document that outlines the "community standards" to which their decision was based.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KetanP on 10/20/2015 8:53 AM [emphasis added]

We regret to inform you that the xxxx HOA Architectural Committee has declined your application with the following reasons:

The modification does not conform to the community standards. You must restore the front walkway to its original condition.

So, it appears that you made a change without prior approval.

Lets be honest, this likely annoyed the Committee and perhaps the Board (especially if there are any personality conflicts involved).

Are you the first to make such a change (whatever it was) or are there others?

If there are others, appeal the decision to the Board. At the Board meeting be polite and admit your failure to wait for approval and apologize for it. Then explain that you are not asking for anything different then what has been approved in the past (this is where you show pictures and provide addresses). Explain that all you are asking is to have your request given the same consideration and treatment others were given when they were approved.

If you are the first one to request such a change, you may simply want to correct the issue and consider it a costly lesson.

You could choose to argue the issue, insist on being shown written policies of what the standard is. It's also possible that, if your application is the first, the Board or committee didn't think standards were needed until now. Therefore, they are presenting them to you.

Typically, the approving authority - if no guidelines exist on an issue, makes the decision based on personal tastes. You may not agree with it but they are the ones serving in that position and have the authority to make such decisions.

KetanP (Virginia)
Posts: 22

Posted:

Hi Tim,

Many thanks for you many replies and help you have provided through this forum. Here is my situation. I did the modification first and then applied for it. The reason for this was because the person who helped me do the modification has done the same and was approved before the HOA was formed or more correctly, it was approved by the developer when he was running the HOA. After I applied recently, I got a notice from the HOA stating that the Board has decided not to allow my modification. the reason for this is given as follows " The committee voted on the concrete extensions and they are allowed to vote differently than the developer". They also send me a drawing of the allowed modifications. This was not conveyed in any Board meeting and has not been discussed in any public board meeting. This was done after I sent my application. The board has decided to make these changes for all town homes and this change to the Arc guidelines has not been voted by members yet. Does the board have the power to impose something like this to an application when this has not been passed or approved in any public meeting ( section 55-513).

I am going to challenge this in an hearing on the following grounds. Please advise me if I can do so.

1. My modifications are the same as my neighbors that were previously allowed.
2. I was not aware of any changes to the Arc guidelines
3. New allowable guidelines are not yet publicly posted ( Rules and regulations may be adopted by resolution and shall be reasonably published or distributed throughout the development )

Thank you

KP.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Ketan

You did such without approval. You were wrong.

You would stand a better chance with me by saying Mea Culpa..Mea Culpa...versus challenging me. You can always challenge later if the Mea Culpa does not work.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KetanP on 10/24/2015 7:17 AM

1. My modifications are the same as my neighbors that were previously allowed.

This is the best argument. It doesn't matter who was in charge at the time, a similar modification was allowed by the Association and past precedence should be considered.

However, it doesn't address the fact that you did the work prior to receiving approval.

Quote:

Posted By KetanP on 10/24/2015 7:17 AM

2. I was not aware of any changes to the Arc guidelines

Not being aware is not the same as not being made available.

i.e. Saying, "Officer I was not aware what the speed limit was" will likely not get you out of a ticket.

Therefore, it's a poor argument and, if I was hearing it would have me tune out any other argument you make.

Quote:

Posted By KetanP on 10/24/2015 7:17 AM

3. New allowable guidelines are not yet publicly posted ( Rules and regulations may be adopted by resolution and shall be reasonably published or distributed throughout the development )

Are you sure that they have not been published? If you are, then that is a fair argument as well. I'd even reference VA § 55-513, which states that they shall be published.

However, VA statute does not require publishing prior to enforcement. Additionally, it's not that relevant to the approval or disapproval of the design change. Had you initally sought approval prior to making the change, the design change would have still been denied. You simply might not have chosen to request such a change had they been published and had you followed the covenants and sought prior approval.

Keep in mind that there are two issues:

1) The failure to obtain prior approval

2) The denial of the request.

By your own admission you are in violation for not obtaining prior approval.

As for the request, in addition to the previously approved change on other properties (it would help if there was more than one) you need to layout how this benefits the Association to allow such changes. Things like removing vehicles from the street can be a plus. Also get statements from your neighbors and those across the street that they have no issue with the design. This can help as well.

CfD (Virginia)
Posts: 265

Posted:

Not seeking prior approval was obviously a mistake, but if the ARC committee has already approved similar plans to yours in the neighborhood in the past, it is a mistake on their part to try to make you remove or alter your modification. If they try this, and then you sue them (really the association), I am of the opinion you would probably prevail and be able to keep your modification, but it would cost thousands of dollars and you may get stuck with the legal bill simply because you did not submit your application first.

This is why it is very important for ARC committees to state reasons for approvals or rejections, etc. in their meeting minutes, and to make them available to the membership. In fact, as much as possible should be taken out of the ARC committee's hands in the way of sharing with the membership alterations and modifications that are automatically approved without an application.

Doesn't mean they cannot call you before a due process hearing. Go and state your mistake by not applying, but point out your modification can be found throughout the neighborhood. Then the next move is theirs.

KetanP (Virginia)
Posts: 22

Posted:

Hello All, Thank you again for the replies. I want to clarify a few things that I had not mentioned or forgot to mention.

1. I did the modification in the Month of April. The violation notice was issued in August 2015
2. The reason I did not apply because the former VP of the board told me verbally that I do not need to apply.
3. The board has sent me drawings of concrete install that the board has decided they will approve, this drawing has no Architectural specification. Just a simple drawing with square boxes showing what is allowed. This drawing was approved by a secret meeting which no one knows of. And has not been approved in any public meeting meeting . Further, they are saying that my violation ties to this drawing which was decided after I applied. This drawing is going to be a part of the arc guidelines for rest of the town homes. From my perspective it is like a cop giving a ticket to a person example on May 31st for a law that is going to be effective from June 1.

Please guide me as I am looking for a lawyer to represent me at the hearing. Unfortunately there are no lawyers I could find that specialize or have knowledge of HOA laws in and around Northern Virginia.

Thank you again.

KP

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KetanP on 10/25/2015 8:29 AM

2. The reason I did not apply because the former VP of the board told me verbally that I do not need to apply.

If he was on the Board at the time he made the statement, then you have another good argument.
However, if he was not on the Board, it carries the same weight as one of us telling you you don't need approval (i.e. it means nothing).

Quote:

Posted By KetanP on 10/25/2015 8:29 AM

Please guide me as I am looking for a lawyer to represent me at the hearing. Unfortunately there are no lawyers I could find that specialize or have knowledge of HOA laws in and around Northern Virginia.

Then you haven't looked that hard or finances are a consideration.
Unfortunately, those that tend to specialize in it may also be representing Associations.

My suggestion is to dig up old cases and see who the attorney was. Then contact them.
I suspect that you will be spending $200-$300 an hour (plus drive time) to have one be with you at the hearing.

Here are some noteworthy cases that have been posted in the past:

Sarnir R. Farran, et al. v. Olde Belhaven Towne Owners Association

Zinone vs Lee’s Crossing Homeowners Association

Fairfax County Redevelopment and Housing Authority v. Shadowood Condominium Association, et al

Unit Owners Association of Buildamerica-1, A Condominium v. Harry F. Gillman

Also do an internet search for HOA attorneys northern virginia and you will find a lot of them.

JackB14 (Virginia)
Posts: 2

Posted:

First of all this is not in any way legal advice and I would urge you to contact an attorney for any situation

Here is my take on your issues.

1: The notice date shouldn't matter unless there is a clause in the CC&R that puts a time limit on it. I say this because I've seen a case where the violation wasn't notified in time and the CC&R said that if it wasn't notified in 30 days it was deemed approved. Again this is totally dependent on what you CC&R says.
BTW do not assume that the HOA can just say it does. It is the complete opposite, if the CC&R does not say it, then it does not mean it is applicable in the HOA's favor automatically. If a CC&R is ambiguous, the VA supreme court has ruled that it would construe it in favor of the free use of land.

2. Again, this is not binding on anyone. As someone already said before, if the guy was on the board it helps your case, but again if the CC&R spells out exactly how Arch Approvals should work, then that is what would be. But if you met a board member, and outlined what you wanted to do and you can prove they said it was fine to do so, then that helps your case more, but it is not a slam dunk as again the CC&R rules here.

3. This would depend on what exactly your CC&R says with regards to Architectural standards and very importantly if what you got can be interpreted as a standard. Remember the "Ambigious" issue. The opinion of VA SC is that these things must be tightly construed and not ambiguous. A photo does not a standard or specification make.

The secret meeting is a non-winner for you if the the CC&R or Bylaws don't say otherwise. Most CC&R, call for an Architectural that can meet without the regular open meeting requirements of general meetings. But they must communicate the outcome to the board who then must approve the standard and notify all members before is enforced.

If they have gone and retroactively created just a picture and have actually notified you in writing that it is the standard for which you will be judged, they actually have done themselves a disservice. Most CC&R call for a clear standard and specifications, and usually allows for the board or architectural to create a new standard.

Some explanations
Scenario 1: You didn't apply but built it anyway, the board comes back and says you didn't apply so it must come down because you didn't apply which is what the rule says (They should have stopped there.)

Scenario 2: You didn't apply but built it anyway, the board comes back and says you didn't apply and they then reference this new standard they just created after you built, so it must come down because you failed to meet this new standard (WRONG: They have tied the approval of an already existing structure to a new standard, that is a can of worms)

Scenario 3: You apply, the board comes back with a new standard and says you should reapply matching this new standard (That is perfectly fine and is what would have happened)

The problem you'd face is that you didn't apply, but don't let that dishearten you into thinking that you have no recourse.
I've seen a case where not applying didn't matter, because nobody was applying and many had done the same thing.
Unfortunately it sounds like you are in a pickle which can cost quite a bit to follow all the way through. Question is if your change is worth it.

I would recommend Friedlander, Friedlander and Earman. They have done quite a few cases like this. But again this is just my own opinion.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JackB14 on 10/29/2015 10:02 AM

Most CC&R, call for an Architectural that can meet without the regular open meeting requirements of general meetings.

Any such statement in the CC&Rs was deemed invalid by Virgina Statute, specifically § 55-510.1, which also applies to committees:

A. All meetings of the board of directors, including any subcommittee or other committee thereof, shall be open to all members of record

If your Architectural Committee is not holding open meetings, then they are in violation of the statute.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jack,

Welcome to the forum.

As a side note, I know a recommendation was asked for, but posting of names is not consistent with the forums posting rules (available on every page by clicking the smiley face with the sign posting rules).

This is why you will often see links to a web site article that may simply state (from an attorney's website, etc.).

You provided Good info.

Tim

CfD (Virginia)
Posts: 265

Posted:

"If your Architectural Committee is not holding open meetings, then they are in violation of the statute."

Completely agree with you here Tim.

JackB14 (Virginia)
Posts: 2

Posted:

Apologies about the naming, will not do that again.

As for the open meeting, I stand corrected with thanks, which only means it helps his case even more.

This photograph which is now the standard for which he is retroactively judged was added in a meeting that wasn't even held in accordance with the statute.
I guess the question is mention/not mention?

From the sounds of it, I would say a person/s has a bone to grind with him and is using the HOA to do it (since other people have the same concrete and it is not an issue).
If that is the case, then I don't see this dog them letting that bone go despite how insane it gets.
Consider letting them compound their own mistakes and simply using it against them when the time comes. My 2cs

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