Approval by Committee

Started by ConchoP • 13 replies • 1162 views

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ConchoP (Texas)
Posts: 208

Posted:

We are new and are transitioning from a developer control board to a homeowners board in Texas

Our Bylaws state:

Approval by Committee: The Board, or architectural control committee, if on is established, must review and rule on any structural plans submitted to said group within ten business days after submittal. All rulings that fall within the scope of the declaration as filed by Developer (being the same as Class B Member), must be in conformity of said declaration, meaning that neither the Board nor an architectural control committee can approve structural plans that are prohibited in the pertinent declaration filed by Developer. If no ruling is made, individual or entry submitting the plans may send, certified mail, return receipt requested, the plans to the current President of the Homeowners Association. If the President dies not respond within five business days after the receipt thereof, the plans shall be deemed accepted and approved.

Can someone please explain meaning?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Basically, as I read it.

The architectural committee is responsible for any exterior changes (or plans for the home).
If a committee does not exist, then the task falls to the Board.

Neither the Committee nor the Board may approve anything that does not comply with the CC&Rs.

Once a plan is submitted, the committee has 10 days to respond (typically 10 business days) with an approval or disapproval.

If the Committee does not respond, the requester must send the request via certified mail to the President of the Association.

The President, must then have the Board or Committee approve or disapprove the request within 5 business days (M-F). Failure to respond means that the plans are automatically approved (regardless if they comply or not).

So - to paraphrase my response:

Request submitted
Committee or Board (if not committee exists) has 10 business days to approve/disapprove
If there is no reply, the requestor sends the request via certified mail to the President.
President has 5 business days to have the Board/Committee approve/disapprove
If there is no response - plans/request are automatically approved.
Neither the Board or the Committee may waive any part of the CC&Rs when approving/disapproving.

One note: the paragraph specifies that the original CC&Rs must be used when considering approval/disapproval. Therefore, I would amend that section when possible to simply state:

"All rulings that fall within the scope of the declaration on file, meaning that neither the Board nor an architectural control committee can approve structural plans that are prohibited in the pertinent declaration."

ConchoP (Texas)
Posts: 208

Posted:

Thank you for the clarification. Structural Plans would mean items such as fencing, additions, add onto a back or front porch - correct?

Seems odd that the board can't approve structural plans out side of the CC&R, but if they don't respond with 5 days the plans are approved - is this normal?
Just seems odd to possibly have something automatically conflict with the CC&R.

Our Bylaws states the "affairs of the Association are governed by the Board" and names the initial Board as those listed in the certificate of formation -I'm assuming that is the developer and two directors which were his brother and lawyer.

Does this means, from inception, the developer was acting as the Board, so would be subject to any and all rules in our Bylaws that dictate the power of the Board?

Does this means he was subject to the ACC that states the Board can't approve structural plans that are in violation of the declaration (covenants.)?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By ConchoP on 03/14/2017 7:00 PM

Structural Plans would mean items such as fencing, additions, add onto a back or front porch - correct?

Probably open for interpretation.
Attaching items to walls, roof, etc. could also be considered structural.

Quote:

Posted By ConchoP on 03/14/2017 7:00 PM

Seems odd that the board can't approve structural plans out side of the CC&R,

Not really.
The CC&Rs is the contract everyone agreed to. Therefore, nobody should be able to change the contract on their own (boards allowing a 1,000 sq foot home vs. 3,000 for example) unless specifically authorized within the contract.

Quote:

Posted By ConchoP on 03/14/2017 7:00 PM

but if they don't respond with 5 days the plans are approved - is this normal?

In some Associations and some State statutes, yes.
Ours provide for 15 days to respond. If no response, then the plans are automatically approved.
If the plans fail to comply with the CC&Rs, then one must take action to stop it.

If you think about it, it's fair.
Homeowners wants to install a deck. Has a contractor lined up and permits from the city.
All that is needed is Association approval. However, the Committee chair and the homeowner have personality differences and the Chair simply doesn't want to bring it before the committee. Having a deadline (and certified mail to prove it was received for the deadline timeline to start) the personality conflict is lessened

Quote:

Posted By ConchoP on 03/14/2017 7:00 PM

Does this means, from inception, the developer was acting as the Board, so would be subject to any and all rules in our Bylaws that dictate the power of the Board?

Yes.

During declarant control, they are still bound by the governing documents and applicable statutes. The difference is that the Declarant typically holds enough voting power that they can vote anything they want to implement and deny anything they don't want.

Quote:

Posted By ConchoP on 03/14/2017 7:00 PM

Does this means he was subject to the ACC that states the Board can't approve structural plans that are in violation of the declaration (covenants.)?

Yes.

However, he may have owned enough lots to amend the CC&Rs with or without support of the other homeowners. Of course, such changes would need to be recorded to be official.

ConchoP (Texas)
Posts: 208

Posted:

Our main problem is the developer has broken most of his own deed restrictions. So we are going thru the bylaws and CC&R trying to understand as much as we can to narrow down questions for an attorney.

We have a new board, so according to the Bylaws the Class B Member shall neither be subject to an architectural control committee nor to the board of directors of this homeowners Association. Further, the Class B member must approve all building plans and specifications on lots not owned or not being built by said Class B Member until the original home is built and move-in ready, at which point the Association will enforce all restrictions. and by laws.

It seems to be a conflict..how can the developer be exempt from the ACC and HOA and when he was "the board" be subject to any and all rules in the CC&R and bylaws?

In addition what is the board's process for homeowners seeking variances from CC&R?

Sections in CC&R state you have to get a written approval from the developer and other sections state you have to get express permission of developer - should this be written?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Cocho

You seem to refuse to accept that while under Declarant control the Declarant can pretty well do/approve any change they desire to make.

ConchoP (Texas)
Posts: 208

Posted:

I do understand that the developer can pretty much do what he wants, that being said an a board member should understanding the CC&R and Bylaws .

In addition there are other things in our ball of mess that I'm not posting on the forum, I just need to gather information and that is what this forum is for.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Concho,

Here is the problem.

Lets say that the builder built a 1,000 sq foot home when the CC&Rs said all homes must be 3,000 sq feet or more.
Builder certainly violated the CC&Rs but the home has likely been sold.

Do you want to bring legal action against the homeowner to force them to build a 2,000 foot extension onto their home?
Do you believe that the membership will support such legal action (which could take years)?

Sometimes, it's simply best to identify the mistakes, fix the ones you can, live with the ones you can't and move forward.

In my new development, the CC&Rs specify that all garages shall be side load.
My property has a detached garage that is front load (the only one).
The Association simply says that my property is grandfathered (as it was one of the first homes built).
In other words, they moved forward.

ConchoP (Texas)
Posts: 208

Posted:

I'm trying to only understand some parts of our CC&R and Bylaws..which I understand about the ACC and I understand some things we have to let go.

My issue is the developer did not following the other parts of his deed restrictions, leaving the new transition board with a mess.

Homeowners were not assessed annually, many paid their HOA at closing, some never paid at closing - I know this is fixable.

We have junk in between homes, junk cars that he did nothing about. We are residential only and he has a model home which is nothing more than a crew shack,
a huge rock pile so he can have rock on hand to build homes. Not to mention a homeowner operating a body shop out of his home...YES - he may have be granted a variance...but at this time we don't know..... Almost everyone's fencing needs variances given to almost all homeowners. He gave some written variances some verbal- we we will have to decipher though them.

The roads are not to county spec and probably never will be, so we are trying to figure out who owns the roads or if the were conveyed to the HOA.
We have dips (for water drainage) that were built wrong and are dangerous, some street signs are not on some of the streets he built and sold some homes so Emergency personal would not know where to find a street- putting the HOA at risk....He has a couple tracks that the road meets up to an development road and these homes have an option of joining the HOA, so we don't know who is responsible for them. These same tracks do not restrict firearms and are close to homes and a Farm to market road...so these homeowners are allowed to hunt if they own a 10 acre track- which needs some research to find Texas law on hunting on ten acre tacks.

He was to start a transition to a director appointed board in Feb 2016, he missed the deadline so we essential had no board.
After homeowners became concerned, we had 10 home owners meet with him face to face, with a lawyer in attendance, in September to figure out what steps we need to take to start the HOA. I asked about what is the board to do because there would be a time frame of a few days or weeks where the board would not have insurance. The lawyer agreed and said they will need to do that asap. In the past 3 weeks we found out in Feb. 2016 someone filed suit against the HOA and the developer..claiming they got hurt driving over those dips in the road. The developer never mentioned during that September, nor did he mention it when he met with the new board in Jan. of 2017. The developer's crew shack supervisor told our President about it and how they may be drug into it....Now all but one board member resigned.

As you can see I'm frustrated as heck and just want to string him up...so going thru the CC&R's and Bylaws getting questions ready for a lawyer is all I can do..
Yes, I may find out that were basically screwed but we have to go though the process to find a direction.

TimB4 (Tennessee)
Posts: 21,062

Posted:

There should (may) have been a surety bond filed with the County/city.

The first thing you need to do is, with assistance of an attorney, place a claim against that bond.

ConchoP (Texas)
Posts: 208

Posted:

what is a surety bond? and why should be place a claim?

TimB4 (Tennessee)
Posts: 21,062

Posted:

surety bonds is money put into an account to ensure performance of a contract.
If the contract is fulfilled, the bond is returned.
If the contract is not fulfilled, the bond is used to finish the work.

If the roads are not up to code or swales (the dips to control water) are not constructed properly, then the county/city can use the claim against the bond to force the developer to fix those items.

For the swales, contact your local form of the epa.
Our local department helped us a lot in identifying the issues with our swales and even indicated who was responsible for them.

ConchoP (Texas)
Posts: 208

Posted:

The some of the roads are from 2008 the dips maybe since 2013/14

I looked though our county records online and do not see a bond. I will have to go down there.

Do we have any alternative action we can take if there is not a bond?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By ConchoP on 03/15/2017 5:25 PM

Do we have any alternative action we can take if there is not a bond?

Courts

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