ACC Request

JohnnyC2 (Georgia)
Posts: 13

Posted:

We have a homeowner that put in a request to the ACC for a shed the ACC currently doesn't allow sheds without a fence, so the request was denied 45 days after submitted. We have a clause in our covenants that states that the ACC may implement stricter rules and any request more than 60 days old is automatically approved. The ACC on their request document states they will review all request within 30 days. The homeowner took this to mean that if his request was not responded to in 30 days it is automatically approved because of the aforementioned covenant clauses, I am trying to figure out if the homeowner is right.

What say you HOA talk???

TimB4 (Tennessee)
Posts: 21,059

Posted:

It depends on what your documents say.

I also suspect that the shed was installed.
So to resolve the issue, tell them to also install a fence

PitA
Posts: 1,416

Posted:

NO

60 days for 'auto aprove'

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By PitA on 05/21/2016 4:39 AM
NO

60 days for 'auto aprove'

Pita's right. Review in 30 days is not a time limit on approving or denying. It's just a commitment to start the review process.

Sikubali jukumu. Read all posts at your own risk.

JohnnyC2 (Georgia)
Posts: 13

Posted:

I really dont know what to do in the situation as I keep getting different answers from different people. I would have to consult with the attorneys on Monday, but this case is one in which I agree with the homeowner. That ACC request is an extension of the covenants in which a specific time frame for those request to be reviewed was set the ACC took it up and made that requirement more stringent by stating 30 days is their review timeframe. I am in favor of doing nothing as it seems like the ACC screwed this one up but we shall see.

PitA
Posts: 1,416

Posted:

my 'take':

the ACC can review the matter within 30 days yet NOT come to an immediate decision

after 60 days w/o a decision - approved

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By PitA on 05/21/2016 11:58 AM
my 'take':

the ACC can review the matter within 30 days yet NOT come to an immediate decision

after 60 days w/o a decision - approved

Spot on.

Sikubali jukumu. Read all posts at your own risk.

JohnnyC2 (Georgia)
Posts: 13

Posted:

I appreciate everyones input like I said I will see what the lawyers say on monday, the board is currently split. I interpret it a little differently why even state that they will review the document in 30 days the covenants all ready sets a time frame for ACC document review. That 30 days means to me that they stop the clock sooner than they have to "Please allow 30 days for our review" does not mean we have 30 days to review plus another 30 days that covenants gives, it mean to me that you get a decision in 30 days because the acc decided to set their own timeframe and once that time frame expires the request is deemed approved.

PitA
Posts: 1,416

Posted:

the ACC may NOT set a time frame different from the contract (covenant) w/o an amendment to the contract (covenant) being approved by the 'covenantees' / members

the ONLY power the ACC has is granted by the covenant (they are NOT omnipotent)

this 'quandary' is typical of many HOAs because the 'volunteers' attempt to think instead of merely reading and complying with the contract

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JohnnyC2 on 05/21/2016 1:52 PM
"Please allow 30 days for our review" does not mean we have 30 days to review plus another 30 days that covenants gives, it mean to me that you get a decision in 30 days because the acc decided to set their own timeframe and once that time frame expires the request is deemed approved.

I can see where the language can be easily misinterpreted.

But the bigger question IMO is: What's reasonable?

Hypothetical: ACC committee only meets once a month. A request comes in the day after a meeting. They can't possibly turn things around and get the answer back to the owner within 30 days.

However you work out this one incident, I think you need to look at what's a reasonable turnaround based on the way that your HOA processes requests.

In my HOA, our docs say that if no response within 45 days, then request is automatically approved. But that does not guarantee an approve/reject answer in 45. It only guarantees a response in 45 days. Technically speaking, we could respond with an answer that says "we need more information" or "we want to put this issue to a vote of the owners" or something similar.

What we actually do is quite different. We tell our home owners that we will attempt to turn around requests within 2 days. We've delegated approval authority to two individuals - Either one of them is authorized on his own to approve anything that's routinely done in our townhouse community. No meeting required. No wait.

If somehow we miss our 2 day target, there's no automatic approval unless we don't respond within 45 days.

For us there's no confusion because we've always said that our 2 day turnaround is best effort only. It's not a guarantee.

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I have tried to find the exact info and have been unable to. There was a long drawn out, expensive legal case where an owner (and his lawyer) interpreted the Covenants to say unless responded to within so many days, the request was approved. The court ruled otherwise and the owner had to remove a two car, brick garage. It was in Columbia SC.

JohnnyC2 (Georgia)
Posts: 13

Posted:

Our covenants state something different, "The ACC shall establish standards and procedures governing its area of responsibility and practice. The ACC may impose standards not contained within and more strict than this declaration if consistent with the general intent and not in conflict with.

JohnnyC2 (Georgia)
Posts: 13

Posted:

Quote:

Posted By NpS on 05/21/2016 3:23 PM

Posted By JohnnyC2 on 05/21/2016 1:52 PM
"Please allow 30 days for our review" does not mean we have 30 days to review plus another 30 days that covenants gives, it mean to me that you get a decision in 30 days because the acc decided to set their own timeframe and once that time frame expires the request is deemed approved.

I can see where the language can be easily misinterpreted.

But the bigger question IMO is: What's reasonable?

Hypothetical: ACC committee only meets once a month. A request comes in the day after a meeting. They can't possibly turn things around and get the answer back to the owner within 30 days.

However you work out this one incident, I think you need to look at what's a reasonable turnaround based on the way that your HOA processes requests.

In my HOA, our docs say that if no response within 45 days, then request is automatically approved. But that does not guarantee an approve/reject answer in 45. It only guarantees a response in 45 days. Technically speaking, we could respond with an answer that says "we need more information" or "we want to put this issue to a vote of the owners" or something similar.

What we actually do is quite different. We tell our home owners that we will attempt to turn around requests within 2 days. We've delegated approval authority to two individuals - Either one of them is authorized on his own to approve anything that's routinely done in our townhouse community. No meeting required. No wait.

If somehow we miss our 2 day target, there's no automatic approval unless we don't respond within 45 days.

For us there's no confusion because we've always said that our 2 day turnaround is best effort only. It's not a guarantee.

Our ACC conducts daily business via email, so a 30 day turnaround is sufficient, also if they no one told them to state the 30 day turnaround period on their documentation. Had the ACC no stated a specific turnaround time this would not be an issue.

PitA
Posts: 1,416

Posted:

Had the ACC no stated a specific turnaround time this would not be an issue

I suggest you find the section of your Covenants and Restrictions which actually empowers the ACC to set dates.

? Not there ?

OOPS

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JohnnyC2 on 05/22/2016 7:04 PM
Our ACC conducts daily business via email, so a 30 day turnaround is sufficient, also if they no one told them to state the 30 day turnaround period on their documentation. Had the ACC no stated a specific turnaround time this would not be an issue.

1. If you conduct ACC business via email, does that violate open meeting laws in your state?

2. Agree that HOA needs to take responsibility for what's published. However, as John (SC) said, there's case law out there that will support the HOA's position if your board decides to hold to the 60 days in your docs.

Sikubali jukumu. Read all posts at your own risk.

JohnnyC2 (Georgia)
Posts: 13

Posted:

Quote:

Posted By NpS on 05/23/2016 5:20 AM

Posted By JohnnyC2 on 05/22/2016 7:04 PM
Our ACC conducts daily business via email, so a 30 day turnaround is sufficient, also if they no one told them to state the 30 day turnaround period on their documentation. Had the ACC no stated a specific turnaround time this would not be an issue.

1. If you conduct ACC business via email, does that violate open meeting laws in your state?

2. Agree that HOA needs to take responsibility for what's published. However, as John (SC) said, there's case law out there that will support the HOA's position if your board decides to hold to the 60 days in your docs.

1.Open Meeting law, does not apply to community associations. The law only applies to state and county governments, boards and agencies. It does not apply to non-profit corporations except in certain cases in which the non-profit corporation receives public tax funds.

2. The lawyers agreed that the Homeowner has a leg to stand on if this issue escalated to the court systems.

TimB4 (Tennessee)
Posts: 21,059

Posted:

John,

I believe that NP is referring to applicable HOA or COA laws that require open meeting.
I do not know if your State has those or not.

JohnnyC2 (Georgia)
Posts: 13

Posted:

Quote:

Posted By TimB4 on 06/01/2016 8:23 PM
John,

I believe that NP is referring to applicable HOA or COA laws that require open meeting.
I do not know if your State has those or not.

Nothing that I am aware of is on the books in Georgia, we also ran our setup through our lawyers. Also all email is conducted via an HOA Google groups accounts all messages are archived for future boards references and any homeowner can request access to the archive.