Alteration Request but outstanding assessments

KatharinaW
Posts: 55

Posted:

Hi All,

I am wondering how others handle alteration requests from owners owing assessments. All I could find in PA Title 68 Section 5302 11 (ii) is:

(ii) For any period during which assessments are delinquent or violations of the declaration, bylaws and rules and regulations remain uncured, suspend unit owners' rights, including, without limitation, the right to vote, the right to serve on the board or committees and the right of access to common elements, recreational facilities or amenities.

which does not state alterations.

I think people who have money for alterations, also should have the money to pay their dues and therefore would not approve the request as long as they have an outstanding balance.

What do you all do?

Thank you so much
Katharina

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It looks like alterations aren't in the list of things that can be denied. However, I would make sure to make the owners aware of the fact they owe dues. Plus time to make sure you all have a dues collection policy in place to enforce. You don't say how long behind.

Our HOA we had a rule of 6 months behind we lien, 1 year behind we CONSIDER foreclosure. That way we could weed out those who aren't paying out of ignorance, protest, or broke. Those that are broke will offer to make payment arrangements. Which we allowed. If you didn't offer to make arrangements, then most likely they aren't going to pay.

I don't see anything wrong with approving the alterations if they are approvable. Just also push the fact they owe money. The two don't have to go hand in hand. They just aren't members considered to be "In good standing".

Former HOA President

KatharinaW
Posts: 55

Posted:

Quote:

Posted By MelissaP1 on 06/10/2019 12:35 PM
It looks like alterations aren't in the list of things that can be denied. However, I would make sure to make the owners aware of the fact they owe dues. Plus time to make sure you all have a dues collection policy in place to enforce. You don't say how long behind.

Our HOA we had a rule of 6 months behind we lien, 1 year behind we CONSIDER foreclosure. That way we could weed out those who aren't paying out of ignorance, protest, or broke. Those that are broke will offer to make payment arrangements. Which we allowed. If you didn't offer to make arrangements, then most likely they aren't going to pay.

I don't see anything wrong with approving the alterations if they are approvable. Just also push the fact they owe money. The two don't have to go hand in hand. They just aren't members considered to be "In good standing".

Thank you. We do have a process in place, but are a little behind it given we switched the MC starting Jan and gave a grace period for Q1. In May we started charging fees and interest but every homeowner receives a monthly statement showing what they owe. An owner has generally 60 days prior to receiving a first notice. And they have received that notice back in May.

RichardP13 (California)
Posts: 3,868

Posted:

Before approving such a request, as a management company, I would want the dues to be current, or the paperwork, like their assessment, is in the mail.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Then you've answered your own question, if the covenants don't allow it, the state law is vague, then you'll have to approve the alteration as long as it follows the ARC rules. For example, it's not a good idea to disallow an alteration like something that involves security of an owners unit or medical based alterations. If it's like a deck or patio, not much you can do since the applicant has followed the application requirements.

Like Melissa said they don't go hand in hand, there are already actions you can take in case of delinquent accounts. It's also surprising that the alterations committee would know about delinquent accounts, the board and committee are always separate. Most state law/bylaws probably kept them separate just for this very reason, wouldn't you say Melissa?

For Richard, what you want doesn't matter, the covenants must be clear. If Richard's management company is trying to get delinquents to pay using his tactic, then that would pose the board to liability.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kat

You can suspend an owners rights and asking for permission for an alteration is an owners right, thus any permission is suspended until dues are paid. Easy Peasy.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By SheilaJ1 on 06/10/2019 1:26 PM
It's also surprising that the alterations committee would know about delinquent accounts, the board and committee are always separate. Most state law/bylaws probably kept them separate just for this very reason, wouldn't you say Melissa?

We do not have any committees. We only have a BOD. PA does not require additional committees as far as I could find.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By JohnC46 on 06/10/2019 1:27 PM
Kat

You can suspend an owners rights and asking for permission for an alteration is an owners right, thus any permission is suspended until dues are paid. Easy Peasy.

Thank you so making me aware that there actually is a "," in that sentence. I read it as a whole. Ugh. So an alteration is considered a right? I guess I didn't look at it that way. I will run this by the MC as well and see how they handle this type of situation in other communities.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 1:32 PM

Posted By JohnC46 on 06/10/2019 1:27 PM
Kat

You can suspend an owners rights and asking for permission for an alteration is an owners right, thus any permission is suspended until dues are paid. Easy Peasy.

Thank you so making me aware that there actually is a "," in that sentence. I read it as a whole. Ugh. So an alteration is considered a right? I guess I didn't look at it that way. I will run this by the MC as well and see how they handle this type of situation in other communities.

If possible, post the parts of your CC&R's that covers this and suspending owners.

KatharinaW
Posts: 55

Posted:

The CC&R do not state anything other than interest and charges for late fees, as well as "Acceleration", which could mean the assessments could become due for the entire fiscal year after 60 days delinquency. They also mention that further clarification could be done in the ByLaws, but they state the exact same thing as the CC&R.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 1:41 PM
The CC&R do not state anything other than interest and charges for late fees, as well as "Acceleration", which could mean the assessments could become due for the entire fiscal year after 60 days delinquency. They also mention that further clarification could be done in the ByLaws, but they state the exact same thing as the CC&R.

I'm sure it's muddled somewhere in the CC&R's language, a lot of experts in this area on this forum that can interpret them, it could be under the Alterations section, Voting Right section, covenants section, board duties section....etc.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By SheilaJ1 on 06/10/2019 1:26 PM
Then you've answered your own question, if the covenants don't allow it, the state law is vague, then you'll have to approve the alteration as long as it follows the ARC rules. For example, it's not a good idea to disallow an alteration like something that involves security of an owners unit or medical based alterations. If it's like a deck or patio, not much you can do since the applicant has followed the application requirements.

Like Melissa said they don't go hand in hand, there are already actions you can take in case of delinquent accounts. It's also surprising that the alterations committee would know about delinquent accounts, the board and committee are always separate. Most state law/bylaws probably kept them separate just for this very reason, wouldn't you say Melissa?

For Richard, what you want doesn't matter, the covenants must be clear. If Richard's management company is trying to get delinquents to pay using his tactic, then that would pose the board to liability.

I am sure you have a legal background, or had a lawyer tell you they couldn't, right?

KatharinaW
Posts: 55

Posted:

Quote:

Posted By SheilaJ1 on 06/10/2019 1:47 PM

Posted By KatharinaW on 06/10/2019 1:41 PM
The CC&R do not state anything other than interest and charges for late fees, as well as "Acceleration", which could mean the assessments could become due for the entire fiscal year after 60 days delinquency. They also mention that further clarification could be done in the ByLaws, but they state the exact same thing as the CC&R.

I'm sure it's muddled somewhere in the CC&R's language, a lot of experts in this area on this forum that can interpret them, it could be under the Alterations section, Voting Right section, covenants section, board duties section....etc.

In the CC&Rs this is what I found:

Under Effect and Enforcement I found something stating:

"Remedies for Violations:
For a violation or a breach of any of these covenants, conditions, reservations and restrictions by any person claiming by, through, or under the Declarant (Association), or by virtue of any judicial proceedings, the Declarant and the Owners, or any of them severally, shall have the right to proceed at law or in equity to compel a compliance with the terms hereof or to prevent the violation or breach of any of them. "

It goes further into the declarant being allowed to t"trespass" and remove anything built in violation.

and then under Limitation of Liability I found this:

"Standard of Conduct:
In the performance of their duties, the officers and the members of the board if Directors small stand in a fiduciary relation to the Association and shall perform their duties, including duties as members of any committee of the BOD upon which they may serve, in good faith, in a manner they reasonably believe to be in the best interest of the Association and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances. "

In the ByLaws I only found the definitions for the Officers positions, similar wording as above about being allowed to enter and remove in case of non compliance and incur legal fees.

Our documents have been put in place 2006 by the developer and never been amended .... Its on the list of things to do, but with the Quorum requirements I doubt it will happen any time soon.

NpS (Pennsylvania)
Posts: 4,216

Posted:

PA -

Lien is automatic on any delinquency. No need to file a lien, and in fact, HOAs have created problems for themselves by filing a lien when one is already in place by operation of law simply because the delinquency exists.

No need to separate committees. Board can act in both capacities.

Even so, I would caution against denying approval based on a delinquency for the following reasons:

- There are probably other clauses that could be conflicting. For example, if you have a clause that says, if no approval within 45 days, then the request is deemed approved - or something like that. You could get into a tussle with the owner who says that you were obligated to address the validity of the request and you didn't do it within the 45 days. Who needs those fights?

- Please realize that you are establishing a policy. In the harshest of terms - "If you are not current in your assessments, none of your requests will be approved. No exceptions." If not, then you had better have a variance policy. And you had better not apply it selectively. Lots of room for error here IMO.

- If some day, you do decide to have a separate approval committee, then how are you going to handle this new rule? Just because it's not in place now, doesn't mean that you should set yourselves up for failure if circumstances change.

- You said that you are in the middle of an MC change and you have given people 60 days grace. Wow. You don't even have your act together yet, and you're making yourselves sound even nastier than you might want to be.

Better suggestion would be to approve the request and inform the homeowner that the delinquency needs to be caught up. Say it nicely and say it firmly but don't turn down homeowner requests to improve their property.

The difference between the denial of services like a pool or gym and the refusal to allow someone to do work on their own home is big. It could cost you a lot of money in court to find out one way or another.

I've been though many MC changes. They never go smoothly. I would be very careful about trying to mix issues.

Best of luck.

Sikubali jukumu. Read all posts at your own risk.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

If you can search for text, nothing on the keywords like "voting rights" "delinquent" "past due" "suspend" "60 days" "30 days" etc.

Has to be something about delinquency.

Also, 2006 is not that old. And changing CC&R's requires 2/3 vote of the entire membership, usually. Depending on how your Bylaws are setup, a quorum is usually the easier part.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By SheilaJ1 on 06/10/2019 2:38 PM
If you can search for text, nothing on the keywords like "voting rights" "delinquent" "past due" "suspend" "60 days" "30 days" etc.

Has to be something about delinquency.

Also, 2006 is not that old. And changing CC&R's requires 2/3 vote of the entire membership, usually. Depending on how your Bylaws are setup, a quorum is usually the easier part.

Nope... nothing. I was surprised as well. Well not nothing - only the fees, the interest rate and that the assessments can be made payable for the entire fiscal year upfront after 60 days of delinquency.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By NpS on 06/10/2019 2:35 PM
PA -

Lien is automatic on any delinquency. No need to file a lien, and in fact, HOAs have created problems for themselves by filing a lien when one is already in place by operation of law simply because the delinquency exists.

No need to separate committees. Board can act in both capacities.

Even so, I would caution against denying approval based on a delinquency for the following reasons:

- There are probably other clauses that could be conflicting. For example, if you have a clause that says, if no approval within 45 days, then the request is deemed approved - or something like that. You could get into a tussle with the owner who says that you were obligated to address the validity of the request and you didn't do it within the 45 days. Who needs those fights?

- Please realize that you are establishing a policy. In the harshest of terms - "If you are not current in your assessments, none of your requests will be approved. No exceptions." If not, then you had better have a variance policy. And you had better not apply it selectively. Lots of room for error here IMO.

- If some day, you do decide to have a separate approval committee, then how are you going to handle this new rule? Just because it's not in place now, doesn't mean that you should set yourselves up for failure if circumstances change.

- You said that you are in the middle of an MC change and you have given people 60 days grace. Wow. You don't even have your act together yet, and you're making yourselves sound even nastier than you might want to be.

Better suggestion would be to approve the request and inform the homeowner that the delinquency needs to be caught up. Say it nicely and say it firmly but don't turn down homeowner requests to improve their property.

The difference between the denial of services like a pool or gym and the refusal to allow someone to do work on their own home is big. It could cost you a lot of money in court to find out one way or another.

I've been though many MC changes. They never go smoothly. I would be very careful about trying to mix issues.

Best of luck.

Thank you very much for the questions to think about!

The change of MC actually happened late last year and as of Jan 1st everything went through them. in Jan and Feb we saw high volumes of delinquencies, while people had to make changes to where they pay to, etc. This has changed drastically with the March report. So in May we started adding in fees, interest and the "escalation process" for lack of a better word of sending out notices.

There is no clause about a request being approved or disapproved automatically after a certain time. The documents state:

For the purpose od further insuring the development of the premises as an area of high standard, and subject to any required governmental approvals, the Declarant (Association) reserves the power to control the buildings, structures and other improvements placed on each unit and lot, as well as to make such exceptions to these CC&Rs as the declarant shall deem necessary and proper, including, but not limited to the following:

a) no building or other structure shall be commenced, erected or altered on any Lot until the plans and specifications showing the nature, kind, shape, height, materials, exterior colors and location of the same shall have been submitted to the declarant and the declarant shall havve approved the plans, in writing, as to the harmony of external design and location in relation to the surrounding structures and improvements and the topography of the property. The plans required under this subsection shall be submitted to the declarant prior to any mortgage approval ion ir any submission to any fovernamtnat body for approval

b) tell you which materials are allowed

KatharinaW
Posts: 55

Posted:

I agree though, that there shouldn't be too many changes coming at the same time.

The BOD has not been very strict about enforcing anything at all here, as most of them do not want to run into any kind of confrontations with homeowners... but this behavior has hurt the association fiscally and there needs to be a bit more order in things here.

I know I sound horrible - I like the neighbors with the alteration request and want them to get their patio, but in the bigger scheme, they are not pulling their weight for the community, so there should be some consequences. You do sign up for the financial responsibility when you move into a HOA, so this should not come as any surprise to anyone.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 2:49 PM
There is no clause about a request being approved or disapproved automatically after a certain time. The documents state:

For the purpose od further insuring the development of the premises as an area of high standard, and subject to any required governmental approvals, the Declarant (Association) reserves the power to control the buildings, structures and other improvements placed on each unit and lot, as well as to make such exceptions to these CC&Rs as the declarant shall deem necessary and proper, including, but not limited to the following:

a) no building or other structure shall be commenced, erected or altered on any Lot until the plans and specifications showing the nature, kind, shape, height, materials, exterior colors and location of the same shall have been submitted to the declarant and the declarant shall havve approved the plans, in writing, as to the harmony of external design and location in relation to the surrounding structures and improvements and the topography of the property. The plans required under this subsection shall be submitted to the declarant prior to any mortgage approval ion ir any submission to any fovernamtnat body for approval

b) tell you which materials are allowed

Everything above is about the obligations of the Declarant who I assume is long gone. If there's nothing about the obligations of the BOD after the Declarant is gone, that's very unusual. I suggest talking to an HOA attorney. PA's Uniform Planned Community Act could apply even if there's nothing in your docs.

Sikubali jukumu. Read all posts at your own risk.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By NpS on 06/10/2019 3:41 PM

Posted By KatharinaW on 06/10/2019 2:49 PM
There is no clause about a request being approved or disapproved automatically after a certain time. The documents state:

For the purpose od further insuring the development of the premises as an area of high standard, and subject to any required governmental approvals, the Declarant (Association) reserves the power to control the buildings, structures and other improvements placed on each unit and lot, as well as to make such exceptions to these CC&Rs as the declarant shall deem necessary and proper, including, but not limited to the following:

a) no building or other structure shall be commenced, erected or altered on any Lot until the plans and specifications showing the nature, kind, shape, height, materials, exterior colors and location of the same shall have been submitted to the declarant and the declarant shall havve approved the plans, in writing, as to the harmony of external design and location in relation to the surrounding structures and improvements and the topography of the property. The plans required under this subsection shall be submitted to the declarant prior to any mortgage approval ion ir any submission to any fovernamtnat body for approval

b) tell you which materials are allowed

Everything above is about the obligations of the Declarant who I assume is long gone. If there's nothing about the obligations of the BOD after the Declarant is gone, that's very unusual. I suggest talking to an HOA attorney. PA's Uniform Planned Community Act could apply even if there's nothing in your docs.

Apologies, I thought I had mentioned that earlier, but I guess I didn’t. There is a clause in there stating that the “declarant” becomes “association” though out the documents, once the BOD is established by unit owners.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 2:58 PM
I agree though, that there shouldn't be too many changes coming at the same time.

The BOD has not been very strict about enforcing anything at all here, as most of them do not want to run into any kind of confrontations with homeowners... but this behavior has hurt the association fiscally and there needs to be a bit more order in things here.

I know I sound horrible - I like the neighbors with the alteration request and want them to get their patio, but in the bigger scheme, they are not pulling their weight for the community, so there should be some consequences. You do sign up for the financial responsibility when you move into a HOA, so this should not come as any surprise to anyone.

My opinion only, but I believe that homeowners have only so much tolerance for change. Yes, BOD members run scared and your HOA gets behind. Just remember, you need to pick your spots, show that you've thought through the actions you are taking, explain yourself in a believable manner, and gain respect where there was none before. It doesn't happen overnight. You are being judged on everything that goes wrong.

IMO, saying we've got to get all caught up now because we're so far behind is only going to get you groans from the folks you need and want on your side.

Sikubali jukumu. Read all posts at your own risk.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By NpS on 06/10/2019 3:48 PM

Posted By KatharinaW on 06/10/2019 2:58 PM
I agree though, that there shouldn't be too many changes coming at the same time.

The BOD has not been very strict about enforcing anything at all here, as most of them do not want to run into any kind of confrontations with homeowners... but this behavior has hurt the association fiscally and there needs to be a bit more order in things here.

I know I sound horrible - I like the neighbors with the alteration request and want them to get their patio, but in the bigger scheme, they are not pulling their weight for the community, so there should be some consequences. You do sign up for the financial responsibility when you move into a HOA, so this should not come as any surprise to anyone.

My opinion only, but I believe that homeowners have only so much tolerance for change. Yes, BOD members run scared and your HOA gets behind. Just remember, you need to pick your spots, show that you've thought through the actions you are taking, explain yourself in a believable manner, and gain respect where there was none before. It doesn't happen overnight. You are being judged on everything that goes wrong.

IMO, saying we've got to get all caught up now because we're so far behind is only going to get you groans from the folks you need and want on your side.

I agree with you in theory. But where do you start if not with the small things?

Thanks for you open ear and your insight into this. Lots to learn for me as well!

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 3:44 PM

Posted By NpS on 06/10/2019 3:41 PM

Posted By KatharinaW on 06/10/2019 2:49 PM
There is no clause about a request being approved or disapproved automatically after a certain time. The documents state:

For the purpose od further insuring the development of the premises as an area of high standard, and subject to any required governmental approvals, the Declarant (Association) reserves the power to control the buildings, structures and other improvements placed on each unit and lot, as well as to make such exceptions to these CC&Rs as the declarant shall deem necessary and proper, including, but not limited to the following:

a) no building or other structure shall be commenced, erected or altered on any Lot until the plans and specifications showing the nature, kind, shape, height, materials, exterior colors and location of the same shall have been submitted to the declarant and the declarant shall havve approved the plans, in writing, as to the harmony of external design and location in relation to the surrounding structures and improvements and the topography of the property. The plans required under this subsection shall be submitted to the declarant prior to any mortgage approval ion ir any submission to any fovernamtnat body for approval

b) tell you which materials are allowed

Everything above is about the obligations of the Declarant who I assume is long gone. If there's nothing about the obligations of the BOD after the Declarant is gone, that's very unusual. I suggest talking to an HOA attorney. PA's Uniform Planned Community Act could apply even if there's nothing in your docs.

Apologies, I thought I had mentioned that earlier, but I guess I didn’t. There is a clause in there stating that the “declarant” becomes “association” though out the documents, once the BOD is established by unit owners.

Gotcha. Even so, I'm uncomfortable about how everything is in the Declarant's (now Association's) favor. The unlimited power isn't always a good thing.

See § 5112. Unconscionable agreement or term of contract.

(a) Powers of contract.--The court, upon finding as a matter of law that a contract or contract clause was unconscionable at the time the contract was made, may:

(1) refuse to enforce the contract;

(2) enforce the remainder of the contract without the unconscionable clause; or

(3) limit the application of any unconscionable clause in order to avoid an unconscionable result.

Also § 5108. Supplemental general principles of law applicable.

The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this subpart, except to the extent inconsistent with this subpart.

Maybe, I'm just excessively cautious when you might be mixing oil and vinegar. There's so many unexpected challenges you could be running into.

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 12:28 PM
Hi All,

I am wondering how others handle alteration requests from owners owing assessments. All I could find in PA Title 68 Section 5302 11 (ii) is:

(ii) For any period during which assessments are delinquent or violations of the declaration, bylaws and rules and regulations remain uncured, suspend unit owners' rights, including, without limitation, the right to vote, the right to serve on the board or committees and the right of access to common elements, recreational facilities or amenities.

which does not state alterations.

I think people who have money for alterations, also should have the money to pay their dues and therefore would not approve the request as long as they have an outstanding balance.

What do you all do?

Thank you so much
Katharina

Can we get back to the OP's original post (above)? I do not think it has been answered.

RichardP13 (California)
Posts: 3,868

Posted:

Having the Board approve someone's application to make architectural changes to one's property is not a right. I don't think there is case law for it.

Let's say you live in a gated community. You can't be denied entrance or access to your home, but someone can make it more difficult for you. For instance, you have a remote and a code for the keypad. You can keep your remote, but your privileges (after due process) to use the key pad can be revoked. If you have visitors or workers needing access to the property, you better be home and get you butt down to the gate, using YOUR remote to let them in.

Just one example.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By RichardP13 on 06/10/2019 4:54 PM
Having the Board approve someone's application to make architectural changes to one's property is not a right. I don't think there is case law for it.

Let's say you live in a gated community. You can't be denied entrance or access to your home, but someone can make it more difficult for you. For instance, you have a remote and a code for the keypad. You can keep your remote, but your privileges (after due process) to use the key pad can be revoked. If you have visitors or workers needing access to the property, you better be home and get you butt down to the gate, using YOUR remote to let them in.

Just one example.

The OP posted from her docs:

(ii) For any period during which assessments are delinquent or violations of the declaration, bylaws and rules and regulations remain uncured, suspend unit owners' rights, including, without limitation, the right to vote, the right to serve on the board or committees and the right of access to common elements, recreational facilities or amenities.

Would not without limitation allow most anything such as no arch. changes will be permitted?

ND (PA)
Posts: 792

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 12:28 PM
Hi All,

I am wondering how others handle alteration requests from owners owing assessments. All I could find in PA Title 68 Section 5302 11 (ii) is:

(ii) For any period during which assessments are delinquent or violations of the declaration, bylaws and rules and regulations remain uncured, suspend unit owners' rights, including, without limitation, the right to vote, the right to serve on the board or committees and the right of access to common elements, recreational facilities or amenities.

which does not state alterations.

I think people who have money for alterations, also should have the money to pay their dues and therefore would not approve the request as long as they have an outstanding balance.

What do you all do?

Thank you so much
Katharina

I understand where you are coming from; however, these are two separate issues that in my opinion need to be kept separate. Making an architectural improvement to one's own property is not a right that can be denied if IAW the documents. And it's not on par with voting, being on the BOD, and accessing amenities (that the assessments pay to maintain) which is why it's not part of that listing from the PA Title 68. Further, how a homeowner chooses to spend their money is really none of the Board's business. There are processes to go after homeowners who choose to not pay assessments. Use those processes and continue pursuing them separately for their delinquency. But review and make a decision on the architectural request considering things only typically considered for rendering that decision.

That said, you can certainly try to reject their arch request because they are delinquent and just see what happens. I assume 1 of 2 things. 1) They pay their assessment because they really want to do the improvement. 2) They push back, tell you that you can't do that, threaten to sue . . . and you're just back in the same position you were before, but used another opportunity to remind them they are delinquent (in case they forgot). You'll have to cave (unless you want to waste more HOA money fighting a legal battle you probably won't win).

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 06/11/2019 4:45 AM

Posted By RichardP13 on 06/10/2019 4:54 PM
Having the Board approve someone's application to make architectural changes to one's property is not a right. I don't think there is case law for it.

Let's say you live in a gated community. You can't be denied entrance or access to your home, but someone can make it more difficult for you. For instance, you have a remote and a code for the keypad. You can keep your remote, but your privileges (after due process) to use the key pad can be revoked. If you have visitors or workers needing access to the property, you better be home and get you butt down to the gate, using YOUR remote to let them in.

Just one example.

The OP posted from her docs:

(ii) For any period during which assessments are delinquent or violations of the declaration, bylaws and rules and regulations remain uncured, suspend unit owners' rights, including, without limitation, the right to vote, the right to serve on the board or committees and the right of access to common elements, recreational facilities or amenities.

Would not without limitation allow most anything such as no arch. changes will be permitted?

I'm reading it the way John is, but if this were my community, I'd run it past our attorney to make sure that my interpretation is correct.

SheliaH (Indiana)
Posts: 6,964

Posted:

You do make a valid point - when I was board treasurer, I'd ask the same thing, especially if I knew the place was being rented out. However, it's best to address delinquencies and exterior change requests separately.

Continue to take whatever legal action is necessary to collect the debt - for example, if this lands in small claims court, you could use the exterior change request as a weapon against them (Your Honor, we've been pursing this delinquent account since X date and now Mr. Z wants the board to approve an exterior change costing X amont. It would appear he has the money to bring the account current, but hasn't done so). Let him or her explain that to the judge.

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

AugustinD
Posts: 5,144

Posted:

KatharinaW, remember that the statute you cited starts with "[The Association may] mpose charges for late payment of assessments and, after notice and an opportunity to be heard... " Your HOA has to invite the member to a meeting with the Board.

Else I agree with JohnC46. As far as I am concerned, the HOA should go ahead and inform the member that, until the member's assessment is paid up, the HOA will not approve any architectural change request. I would cite verbatim PA Title 68 Section 5302 (a) 11 (ii) (including the preamble I quote above). Give the member a chance "to be heard," offering three dates that the Board can meet with the member. If the member wants to lawyer up, so what. If she or he has money for an attorney, then she or he has the money to pay the assessment.

It's not a mere covenant we are talking about. It's state law that says the HOA can suspend a member's rights, "without limitation" when the member is in arrears. All the courts want subsequently is for the Board to be, "fair and reasonable." Whether refusing to approve an architectural change request is "fair and reasonable" is a matter of opinion. My opinion is it is fair and reasonable. Delinquencies are a big deal. They can cripple a HOA. With enough delinquencies, a HOA is stuck with hiring a collections attorney and often settling for a lot less than what is owed. If push comes to shove, I think a court would recognize this.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By KatharinaW on 06/10/2019 2:32 PM
In the CC&Rs this is what I found:
[snip for conciseness]
"Remedies for Violations:
For a violation or a breach of any of these covenants, conditions, reservations and restrictions by any person claiming by, through, or under the Declarant (Association), or by virtue of any judicial proceedings, the Declarant and the Owners, or any of them severally, shall have the right to proceed at law or in equity to compel a compliance with the terms hereof or to prevent the violation or breach of any of them."

I understand the phrase, "at law or in equity" is typically interpreted to mean 'by statute or in the courts.' The OP has the statute on her side.

Also, I weigh what is a greater burden on a member: Denying access to amenities and common elements, or denying an architectural request. Unless there is something of a safety situation involved with the architectural request (posing a threat to life or property), I think denying said architectural request may be a lesser punishment than denying access to amenities and common elements.

KatharinaW
Posts: 55

Posted:

Quote:

Posted By AugustinD on 06/11/2019 8:43 AM
Posted By KatharinaW on 06/10/2019 2:32 PM
In the CC&Rs this is what I found:
[snip for conciseness]
"Remedies for Violations:
For a violation or a breach of any of these covenants, conditions, reservations and restrictions by any person claiming by, through, or under the Declarant (Association), or by virtue of any judicial proceedings, the Declarant and the Owners, or any of them severally, shall have the right to proceed at law or in equity to compel a compliance with the terms hereof or to prevent the violation or breach of any of them."

I understand the phrase, "at law or in equity" is typically interpreted to mean 'by statute or in the courts.' The OP has the statute on her side.

Also, I weigh what is a greater burden on a member: Denying access to amenities and common elements, or denying an architectural request. Unless there is something of a safety situation involved with the architectural request (posing a threat to life or property), I think denying said architectural request may be a lesser punishment than denying access to amenities and common elements.

I would agree under different circumstances. We do not have real common facilities like pools, sports courts or a clubhouse.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By AugustinD on 06/11/2019 8:43 AM
I understand the phrase, "at law or in equity" is typically interpreted to mean 'by statute or in the courts.' The OP has the statute on her side.

Not quite:

Equity
Overview
In law, the term "equity" refers to a particular set of remedies and associated procedures involved with civil law. These equitable doctrines and procedures are distinguished from "legal" ones. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. A court will typically award equitable remedies when a legal remedy is insufficient or inadequate. For example, courts will typically award equitable relief for a claim which involves a particular or unique piece of real estate, or if the plaintiff requests specific performance.

Origin
The distinction arose in England where there were separate courts of law and courts of equity. Following this pattern in America some states created chancery courts which deal only with equitable relief. In other states, the courts of common law were empowered to exercise equity jurisdiction. Today, separate courts of chancery have largely been abolished, as the same court that may fashion a legal remedy has the power to prescribe an equitable one.

Expansion of Equitable Relief
Courts are sometimes hesitant to impose equitable relief, particularly specific performance. This is because equitable remedies often require the courts to monitor the remedies to make sure that the defendant complies with the court order. However, the Supreme Court has been willing to encourage the use of equitable remedies in certain areas of law.

Source: https://www.law.cornell.edu/wex/equity

Sikubali jukumu. Read all posts at your own risk.

RichardP13 (California)
Posts: 3,868

Posted:

Seriously folks, all this for how to handle a ARC request when a homeowner is delinquent? It's like having 100 attorneys in the same room discussing the same subject.

Nothing accomplished.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By RichardP13 on 06/11/2019 3:32 PM
Seriously folks, all this for how to handle a ARC request when a homeowner is delinquent? It's like having 100 attorneys in the same room discussing the same subject.

Nothing accomplished.

Mmmmm ...
Thanks Richard for always staying on topic. And for never making people feel like they're in a room of 100 PMs.
All in fun.

Sikubali jukumu. Read all posts at your own risk.

KatharinaW
Posts: 55

Posted:

Thanks everyone. Our PM advised to keep it separate and per your suggestions agreed to add a friendly reminder o the approval that they owe dues.

I guess that’s the way to do it in our neighborhood

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By NpS on 06/11/2019 8:15 PM
Posted By RichardP13 on 06/11/2019 3:32 PM
Seriously folks, all this for how to handle a ARC request when a homeowner is delinquent? It's like having 100 attorneys in the same room discussing the same subject.

Nothing accomplished.

Mmmmm ...
Thanks Richard for always staying on topic. And for never making people feel like they're in a room of 100 PMs.
All in fun.

Whatever

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By KatharinaW on 06/11/2019 8:18 PM
Thanks everyone. Our PM advised to keep it separate and per your suggestions agreed to add a friendly reminder o the approval that they owe dues.

I guess that’s the way to do it in our neighborhood

Good move. Best of luck.

Sikubali jukumu. Read all posts at your own risk.