HOA Attorney's Interpretation of Architectural Controls

Started by CarolynM3 • 8 replies • 1502 views

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CarolynM3 (Georgia)
Posts: 63

Posted:

We met with our attorney today to discuss violations in the area of Architectural Controls.

1. Most of the board members are OK with issuing retroactive approval for the screens that were installed on the units facing the woods and are not visible from the streets. In fact, the vote has already been tallied.

2. The board does not wish to approve existing screens and curtains that face into the street and the parking lot.(nor do they want to approve them going forward)

3. Our attorney, told us today that based on the language written in 14 (a) below, the HOA board can choose to "approve" or "disapprove" based on the visual appearance and other criteria. That we can actually "allow screens on the back of the building", but disallow them on the front.

4. Is this correct? He indicated it is not "selective enforcement, and that the language below is sufficiently broad to permit us to do so.

5. Questions: a. Have you ever had to make a decision to "allow" something based on the location within the community (front facing vs. back facing)? b. If so, how did you come up with the language to support the decision?

Here's the referenced excerpt from our Declarations:

"14. ARCHITECTURAL CONTROLS AND USE RESTRICTIONS. To promote
harmony among the Unit Owners and thereby protect the value of the Units, all portions of the
Condominium shall be subject to the restrictions set forth in this Section and to such
supplemental Rules and Regulations as may be adopted from time to time by the Board.

(a) Architectural Controls. To preserve the architectural appearance of the
Condominium, no construction of any nature whatsoever shall be commenced or maintained by
any Owner other than Declarant which would change the exterior appearance of any Unit or any
other portion of the Condominium, nor shall any exterior addition, change or alteration thereto
be made, unless and until the plans and specifications showing the nature, kind, shape, height,
materials and location of the same shall have been submitted to and approved in writing as to
harmony of external design and location in relation to surrounding structures and topography by
the Board of Directors or by an architectural committee appointed by the Board of Directors.
The Board of Directors, or its designated architectural committee, shall have the right to adopt
reasonable architectural standards with respect to construction, additions, or alterations as to any
portion of the Condominium and the same shall be enforceable as if set forth herein. A Unit
Owner may make improvements and alterations within his Unit; provided, however, that no Unit
Owner shall make any structural alterations in a Unit or remove any portion thereof or make any
additions thereto or do anything which might jeopardize or impair the safety, soundness or
structural integrity of that Unit or any other Unit without first obtaining the written consent of
the Board of Directors and all Unit Owners and Mortgagees of the Units affected, nor shall any
Unit Owner impair any easement without first obtaining the written consent of the Association
and of the Unit Owner or Owners and their Mortgagees for whose benefit such easement exists."

NpS (Pennsylvania)
Posts: 4,216

Posted:

We've done it in 2 areas.

1. Homeowners in our townhouse community are responsible for exterior maintenance. People have been converting from cedar siding to vinyl siding over the last few years. It's not uncommon for a wall to span 2 or 3 houses.

When people convert to vinyl, we allow vertical seams in the back but not in the front.

2. Some people with end units want to add windows and other build-outs on their end wall. We generally approve it everywhere except the four end units as you enter the community.

Each time we approve one of these changes, we say that the change is "provisionally approved", meaning that the approval is only for this particular house in this particular location. We clearly state in the approval docs that the same request might not be approved in another location.

No one has challenged our approach yet.

Sikubali jukumu. Read all posts at your own risk.

DaveD3 (Michigan)
Posts: 796

Posted:

There is no right or wrong when it comes to questions posed to an attorney. NEVER seek the help of an attorney if you want to know what the "proper" way is to interpret something.

Attorneys will generally approach a question as "How would you like it to read?" and then see if they could possibly twist the language such that your preferred interpretation is "correct".

So if you want to allow screens here and not there, and your attorney supports it, you're probably ok.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Carolyn,

As Dave indicated, attorneys answer based on how the question is posed.

Asking, can we approve some screens and not others?
vs.
Many homes have installed screens without prior approval. How can we resolve this issue?
vs.
We have received a request for a screen but the Board has concerns about aesthetics and many have installed screens without prior approval. What would your advice be on the best way to resolve the issue?
vs.
We received a request for a screen we want to disapprove but are concerned about past precedence as some screens have been approved and some have been installed without permission. Additionally, knowing that screening may add real or perceived value to the property, the board is concerned about inadvertently allowing property value for one unit to increase with an approval while not allowing a similar increase to another unit due to a disapproval. What would be the risks involved with adopting such a policy and are there cases that have established precedence in how a court might rule if such a decision is challenged?

All of the above questions are about the same issue you brought to this forum.
However, each question would likely have different answers.

To answer your question, our Association has adopted a guideline on solar panels by only allowing them on the rear of the house/roof. We specify in the policy that we understand such a policy may prevent optimal efficiency from a solar panel but we believed it was imperative we maintain a colonial look from the street while allowing for technological improvements. Of course, the difference is that we adopted our policy before any panels have been installed.

CarolynM3 (Georgia)
Posts: 63

Posted:

Thanks for your thoughtful answers.

Here's the email content distributed to our HOA attorney before the meeting. The attorney asked for specifics as he read the declarations. Afterwards, he shared with us the findings that I shared with you, that the section of the declarations presented gives the board the discretion to make decisions based on visual appearances, aesthetics, where the violation occurs (visible vs. hidden side of the building).
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
All,

As I see it, the primary topic is the Board’s legal authority to interpret the Declarations/By-Laws, and what latitude the Board has regarding enforcement of rules that may be vague. Is it really necessary to change the Declaration or By-Laws?

Also, what enforcement options does the Board have regarding recent violations vs. old violations that have gone unenforced for several years? i.e., Is there a statue of limitations on violations?

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The Attorney chided us for being remiss in addressing problems as we could be accused of abandoning the covenant.

So, the challenge remains:

How do we support this decision? Do you have any experiences regarding making a decision based on the aesthetics of a violation?

Thanks very much for you assistance and for all of the feedback received. I am capturing your experiences and "lessons learned" for our HOA Board.

CarolynM3 (Georgia)
Posts: 63

Posted:

Here's an update:

The board approved the balcony and shade screens that face the wooded area and are not visible from either the driveways or the parking lots.

The following represents the email from our board president which represents the summary of the call. (from the conference call with our attorney) on this subject (and the subsequent vote by board members):
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
"We have voted to permit the existing balcony screens on the rear of building 2, but we are not permitting the balcony curtains and screen on the front of building 2.

Regarding the ‘selective enforcement’ concern, the attorney made it clear that paragraph 14 (a) gives the Board wide discretion to interpret and enforce architectural rules in a rational way.

With respect to denying the curtains on 2101 and 2102, and the screen on 2201, the Board has the discretion to disallow these balcony installations for violating architectural appearance and uniformity. This is a rational distinction because the front of building 1 is visible to the whole property; whereas, the rear is not visible.

With respect to permitting the screens behind building 2, there are two good arguments supporting this decision: 1) the 2-year statute of limitations is GA law, and 2) there is a rational argument that the backside of building 2 isn’t visible from any practical vantage point."

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The homeowner who was required to take down her curtains, wrote the following to the board president after a conversation with him on the phone:

"As a follow-up to our conversation, I again reviewed our Declaration of Condominium. Section 14, paragraph "j" sets out rules regarding the exterior appearance. This is the paragraph that was used to deny my request to safe guard my privacy. In our conversation, I questioned the lack of uniform enforcement of section 14, paragraph "j" and you stated that the violations were protected because the " statute of limitations " was 2 years and had expired.
Where in our Declaration of Condominium is the provision that addresses a "statute of limitations" for violations?

As I stated, it certainly appears as if the board does not uniformly enforce its own rules.
What is the basis for this discrimination?"

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The Property Manager indicated we can let the attorney respond to her and outline the board's rights to decide in these areas. Your thoughts, please.

Thanks again...

Carolyn

TimB4 (Tennessee)
Posts: 21,059

Posted:

For those who may be unaware, this is an update of an issue discussed in an earlier thread:

http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/212186/Default.aspx

CarolynM3 (Georgia)
Posts: 63

Posted:

Thanks Tim for linking the two. I didn't know how to do that.

Regards,
Carolyn

MichaelF17 (South Carolina)
Posts: 13

Posted:

Unless all decisions of the BoD are based on the uniform (equitable ) applicability to all members then the decision is arbitrary and capricious. In other words, unless all members are allowed the same deference then the BoD is laying in groundwork for turmoil and holding the members accountable for its indifference for its decision causing a situation to compel a home owner to complain of suppression of the quiet and peaceful enjoyment of their property.

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