Arch Approval - Outside of CC&R's

Started by MaryS45 • 10 replies • 903 views

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MaryS45 (Arizona)
Posts: 3

Posted:

Good Afternoon - New board here, previous board all quit when being questioned and new member was appointed at annual meeting. The previous board did many unethical things one of which was to approve an arch request to build a structure 14' tall on the side of the house and near the front of the house so its visible from the street. It is hideous and really needs to be removed as its clearly stated in the CC&R's you can not have anything over fence height visible from the street. Do we have any recourse in this situation? There are a few other homes in which violations have been written stating the structure must be removed. (Those were not approved). Those homeowners are calling out this home as it is the most unattractive in the community - it literally looks like a compound with a tent. The previous board did not take care of the community and now it is in shambles. We are trying to get it back into a nice looking community. Any advice is much appreciated.

KerryL1 (California)
Posts: 14,550

Posted:

Welcome to the Forum, Mary. And kudos to you for your willingness to serve on your HOA's board of directors.

Can you tell us a little more? How many homes in your HOA? What size is your board?

What do your governing documents say about penalties for not adhering to your CC&Rs or Arch. Guidelines? Do you have an Architectural Committee?
Do you know how long this particular monstrosity has been there?

MaryS45 (Arizona)
Posts: 3

Posted:

There are 199 homes in the community. Board is a total of 5 members and all agree the community was not kept up. (They let a hole in the pool house roof go because they didn't feel it needed to be replaced yet.)

The board is the arc committee as we could not get anyone else to join.

This monstrosity has been there since 2012. The guidelines say you can not have a structure visible from the street that is over fence height.

The problem is the prior board approved the arch form with ignorance to the community guidelines. They had the board locked down for many years that no one could join to get things changed.

BillH10 (Texas)
Posts: 1,217

Posted:

Mary, in my experience you are facing a long, expensive battle regarding the structure. Not to say you would not ultimately prevail but it would likely be costly. It can be quite difficult to undo something previously approved.

A couple of thoughts and a recommendation:

1. Consult with the association attorney to determine what options you have.
2. Examine the local codes. Is it possible the structure is not allowed for some reason? Were permits required and if so, were they obtained? Your local governmental body wields a bigger and faster stick than you and their services are paid for through your taxes.

As a recommendation, and you may need the attorney to assist with this depending on his or her analysis and advice, document to the owner the structure will be allowed to remain as is as long as the current owner owns the property. If the property is sold, it has to be removed. Perhaps if it is hit by a tornado, or a car, it cannot be rebuilt. Ensure your resale documents clearly inform a potential buyer of the property that the structure will not be allowed to remain with a change of ownership.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By BillH10 on 03/26/2018 2:17 PM
Mary, in my experience you are facing a long, expensive battle regarding the structure. Not to say you would not ultimately prevail but it would likely be costly. It can be quite difficult to undo something previously approved.

A couple of thoughts and a recommendation:

1. Consult with the association attorney to determine what options you have.
2. Examine the local codes. Is it possible the structure is not allowed for some reason? Were permits required and if so, were they obtained? Your local governmental body wields a bigger and faster stick than you and their services are paid for through your taxes.

As a recommendation, and you may need the attorney to assist with this depending on his or her analysis and advice, document to the owner the structure will be allowed to remain as is as long as the current owner owns the property. If the property is sold, it has to be removed. Perhaps if it is hit by a tornado, or a car, it cannot be rebuilt. Ensure your resale documents clearly inform a potential buyer of the property that the structure will not be allowed to remain with a change of ownership.

I wholly agree with the advice that you should consult with an attorney to find out what your options are. Doing the wrong thing could subject the association to an expensive legal battle.

I have my doubts about whether the association can mandate removal on sale. If the structure was approved, a sale would not negate that approval.

Escaped former treasurer and director of a self managed association.

ArtL1 (Florida)
Posts: 140

Posted:

Over time, boards and committee members get replaced. If the current Architectural Control Committee could go back and say "we don't like that, I don't care if a previous ACC approved it, it's hideous and has to go." there would be little point in members getting things approved. If it was approved in writing, and the member has proof of that, you need to deal with it and move on.

Under developer control, my HOA approved numerous things that are clearly in violation of our CC&Rs. My HOA had something similar happen not long ago...and when the ACC was told they couldn't force a member to remove a structure that, in their opinion should never have been approved, most of that ACC resigned in disgust.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By MaryS45 on 03/26/2018 1:15 PM
Good Afternoon - New board here, previous board all quit when being questioned and new member was appointed at annual meeting. The previous board did many unethical things one of which was to approve an arch request to build a structure 14' tall on the side of the house and near the front of the house so its visible from the street. It is hideous and really needs to be removed as its clearly stated in the CC&R's you can not have anything over fence height visible from the street. Do we have any recourse in this situation? There are a few other homes in which violations have been written stating the structure must be removed. (Those were not approved). Those homeowners are calling out this home as it is the most unattractive in the community - it literally looks like a compound with a tent. The previous board did not take care of the community and now it is in shambles. We are trying to get it back into a nice looking community. Any advice is much appreciated.

The answer is perhaps.

The CC&R's most likely do not provide for the board granting a variance from any of the deed restrictions specified in the document. Therefore, even though the board approved a request to build the structure, the board had no authority to do so.

So clearly the structure is in violation. But what to do about it?

I'd send them a letter advising that the previous approval is void and violated the CC&R's, therefore the HOA is requesting that the homeowner take immediate action to remedy the situation. They might comply or they might refuse, at which point you have to decide how far you intend to push it. You might suggest to them that because the action was approved in violation of the CC&R's, the HOA will pay for the cost of removal of the structure.

AugustinD
Posts: 5,144

Posted:

I echo what BillH10 and ArtL1 say. From my reading of HOA case law and consultations with attorneys as a board member, I think this would be an expensive legal battle where victory is unlikely. Some problems are that:

(1) The structure has been present for some 5-6 years. Even if the structure never received approval, when a structure has been present for this long the courts start saying approval was implicit.

(2) The structure was approved by a prior board. In the (unlikely IMO) event a court ruled it had to be removed, I think a court would order the HOA to pay for the removal, per what Nigel says.

(3) The Board can certainly ask the offending member to remove the structure upon putting it on the market (with removal paid for by the HOA), but I would not be optimistic. I suppose if removing the structure would add to the property value, the offending member might consider this.

(4) Other members can try to enforce the covenants but I expect they would run into the same problems. Share with members what your attorney says on the subject, so at least you can provide a learning moment.

(5) Going forward: If enough other members violated the covenants, either with or without approval, then your HOA is looking at a "waiver/abandonment of covenants (all or some)" defense by the members who are outside the covenants.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Mary,

Could the Board repeal the approval? Yes.
However, the owner would be allowed to collect damages if they went to court.

That owner acted in good faith, sought and obtain approval prior to building.
If the Board repealed, the owner should seek the cost of the object, the cost to install it, the cost to remove it, the cost to dispose of it and the cost to reestablish the property to what it was.

Are you willing to go to the membership and explain that due to inappropriate approval, the Board must spend thousands on a court case to force removal of the object and then more money to reimburse the owners for their damages due to following the process outlined in our governing documents?

MaryS45 (Arizona)
Posts: 3

Posted:

Thank you all for the insight. It really is disheartening that a board could approve items without referring back to the original CC&R's and Community Guidelines. Now to figure out how to tell others no they can not build their structure because it is not in the guidelines when we have this eyesoar in the community.

I do appreciate each of you taking the time to respond.

TimB4 (Tennessee)
Posts: 21,062

Posted:

I'm going to toss another issue onto the fire.

If the structure is in violation of the CC&Rs, if it's allowed to remain, this can result in that section of the CC&Rs becoming unenforceable. Of course, a court ruling would be required to make such a statement.

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