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Architectural Change Committees and CC&Rs

Started by UdaniD • 17 replies • 680 views

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UdaniD (Texas)
Posts: 5
Posted:
Hi all.

The CC&Rs for my subdivision state the ACC can have 3 or 5 members, not more and not less. The ACC has been running with 6 members for the past few months, up until recently. Is this acceptable?
Are the CC&Rs to be followed precisely, or can HOAs and ACCs choose to do things differently than specified in the CC&Rs?

5.01 Architectural Control Committee - Creation and Composition.
"The Commons"8.23.06FINAL
(a) An Architectural Control Committee (the "ACC'') shall be established consisting of
not less than three (3) and not more than five (5) individuals; provided, however, that the ACC
shall always have an uneven number of members.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The HOA board trumps the ACC in the end anyways. So what does it matter? Good you have so many willing to participate.
Former HOA President
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Udan

You need to understand things better.

Not less than 3 nor more than 5 does not mean 3 or 5. It could be 2 or 4 or 5 members.

That said, I do not see a big issue with 6 members unless there is strife.
AugustinD
Posts: 5,144
Posted:
The reason for an uneven number is to help prevent tie votes. Change the sixth member to an unofficial capacity such as "Non-Voting Assistant to the ACC." Your HOA's governing documents may even explicitly permit appointments like this.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
U,

Is there an issue?

If you are a Board member, I would certainly work to get the number back to five ... this shouldn't be too hard.
KerryL1 (California)
Posts: 14,550
Posted:
I'm wondering if there's "an issue" too. Are you on the Board, Udani? Or did the ACC make a decision that someone doesn't like and you wonder if the decision is legitimate?
UdaniD (Texas)
Posts: 5
Posted:
The CC&R's state the number of members needs to be uneven. I think I understand pretty well. Cannot be 2 or 4. But thanks for your input.
UdaniD (Texas)
Posts: 5
Posted:
Yes, one of the HOA Board members is trying to join the ACC, which would make the number 6 again. I'm trying to get it to 5, and want to make sure adhering to the CC&Rs is a requirement, and not something that the majority of a Board could change as they see fit.
KerryL1 (California)
Posts: 14,550
Posted:
Again, Udani, are you on the Board?

Are other directors on the ACC?
UdaniD (Texas)
Posts: 5
Posted:
Yes, I am on the Board. There is one Board director on the ACC.
Sorry, I meant to specify I am on the Board earlier, and must've deleted that part.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By UdaniD on 04/10/2020 1:04 PM
Yes, one of the HOA Board members is trying to join the ACC, which would make the number 6 again. I'm trying to get it to 5, and want to make sure adhering to the CC&Rs is a requirement, and not something that the majority of a Board could change as they see fit.
To change what is in the CC&Rs, the HOA must follow the procedure for amending that the CC&Rs give. All the CC&Rs I have seen require a vote of the membership to amend the CC&Rs. Sometimes the CC&Rs specify that a simple majority vote of the membership is sufficient to amend. Sometimes a super majority (2/3rds or 3/4s) is required. Once in awhile, a 100% affirmative vote of the membership is needed.
MarkW18
Posts: 1,290
Posted:
The ACC is a standing committee written within the CCRs. It can have no more than 5 members UNLESS you amend the CCRs. I suppose it would be alright if there were 6 Board members when the governing docs state a max of 5.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By UdaniD on 04/10/2020 1:02 PM
The CC&R's state the number of members needs to be uneven. I think I understand pretty well. Cannot be 2 or 4. But thanks for your input.
I think I am not understanding. Why is it you think that the number six is uneven?
KerryL1 (California)
Posts: 14,550
Posted:
Your are right, Udani, The board cannot change your CC&Rs as Augustin & MarkW point out. Only the members (Owners) can via a very specific process that's in your CC&Rs. Why do you think a director wants to be on the ACC?

If the Board wanted to, it COULD vote off an ACC member and replace that person with the director. I don't like the idea, but the Board could do it.

Also, do your CC&Rs give the Board the authority to overrule the ACC? Let's say an owner is denied an ACC change request, and the Owner can then go to the board and appeal the decision?

I'm still thinking there's something more to your question than whether the ACC can have 6.
UdaniD (Texas)
Posts: 5
Posted:
Not much more I can add, really. I just didn't understand why we had 6 in the ACC when the CC&Rs clearly stated between 3 and 5, with the requirement the number be uneven... and 6 does not meet the CC&R in this case. Maybe there is something in the CC&Rs or Bylaws stating the HOA Board can change that, but so far I have not found anything.
Thank you all for your feedback. I'm new to this forum, but it's good to be able to get input from others with HOA experience.
BenA2 (Texas)
Posts: 1,273
Posted:
Yes, the CC&Rs are to be followed precisely unless they violate the law. It's not something that is optional because it doesn't really matter or is not always practical. And you are correct that the document requires 3 or 5 members.
KerryL1 (California)
Posts: 14,550
Posted:
The Board or that particular director might ask, "So what? Who cares if we're not supposed to have six, but we do."

Your HOA, Udani, has Directors & Officers insurance to cover board members. The Board also is protected by some sort of business judgement rule. BUT if the board flagrantly disobeys your CC&Rs, I don't think they're protected by either.

So, let's say the ACC denies someone a change that they really want. And let's say, per the docs or TX statute, the Owner may appeal to the board and it turns the applicant down too. Speculating, and assuming the request is reasonable and aligns with ACC requirements, I do believe that applicant would have a very strong legal case against the HOA, Board & ACC.
KerryL1 (California)
Posts: 14,550
Posted:
The Board or that particular director might ask, "So what? Who cares if we're not supposed to have six, but we do."

Your HOA, Udani, has Directors & Officers insurance to cover board members. The Board also is protected by some sort of business judgement rule. BUT if the board flagrantly disobeys your CC&Rs, I don't think they're protected by either.

So, let's say the ACC denies someone a change that they really want. And let's say, per the docs or TX statute, the Owner may appeal to the board and it turns the applicant down too. Speculating, and assuming the request is reasonable and aligns with ACC requirements, I do believe that applicant would have a very strong legal case against the HOA, Board & ACC.

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