Previous ARC Committee approved non-compliant improvement

Started by DavidG45 • 17 replies • 1044 views

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DavidG45 (Delaware)
Posts: 994

Posted:

I am the sole resident board member on our HOA, and I was approached by a resident who was refused approval to install a storm door because of an outstanding violation.

It turns out that three years ago, when our community was just getting started, he submitted an ARC request for a deck. His description included the color of the balustors (black) whereas our restrictions limited the color to white. He didn't know about that restriction at the time, and apparently the ARC Committee (none of whom are still around) did not know either, because he has the approval form from the committee, and the deck was built.

About a year later, when a new ARC was appointed, they walked around the community and cited him for a violation. He explained all of the above, but the current committee insists this is still a violation and have issued fines.

I am curious as to who is in the right in this case. Can an ARC submit approval for an improvement, then revoke the approval after the improvement has been constructed? On the one hand it seems unfair, and opens up a possibility of a committee interpreting rules differently at any point in the future and revoking a prior approval; which could be a nightmare. On the other hand if the ARC cannot correct past errors that could also open the door to problems.

CathyA3 (Ohio)
Posts: 6,299

Posted:

The homeowner's deck application was approved, everybody acted in good faith, so no, the current ARC Committee can't rescind the approval. The only appropriate action at this point would be to notify the homeowner, apologize for the error and grandfather the deck with the caveat that if he replaces/repairs the deck in the future that it should be brought into compliance with standards.

Also, unless your bylaws give the ARC committee the power to issue violation notices, that authority lies with the board. The committee can notify the board but the board has the final say on what action will be taken.

DavidG45 (Delaware)
Posts: 994

Posted:

Thanks.

And good point in the last paragraph. I will need to review the declarations for that.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Oh, and let him put up his storm door if that complies with community standards. Otherwise you're punishing him for someone else's mistake.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 09/14/2020 2:04 PM
The homeowner's deck application was approved, everybody acted in good faith, so no, the current ARC Committee can't rescind the approval. The only appropriate action at this point would be to notify the homeowner, apologize for the error and grandfather the deck with the caveat that if he replaces/repairs the deck in the future that it should be brought into compliance with standards.

Also, unless your bylaws give the ARC committee the power to issue violation notices, that authority lies with the board. The committee can notify the board but the board has the final say on what action will be taken.

I agree.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 09/14/2020 2:13 PM
Oh, and let him put up his storm door if that complies with community standards. Otherwise you're punishing him for someone else's mistake.

I agree.

DavidG45 (Delaware)
Posts: 994

Posted:

I agree with this, and it is the argument I'm going to make. I wanted to get the take of others who have more experience.

Thanks for all the input!

KerryL1 (California)
Posts: 14,550

Posted:

I think that Cathy's correct on all three topics.

ThadC2 (Florida)
Posts: 820

Posted:

your HOA screwed up, fined this person over the screw up and now is getting revenge by not allowing them to install a simple storm door? Fire your entire board and get people with basic ethics involved.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This is why one ALWAYS keeps the HOA approval form. Plus the HOA should have had this in their own records of it. The Developer will often "sign-off" on a multitude of sins when in charge. They don't often care. Now that it is owner owned, the rules can now be modified to fit what the owners want. Which may be people wanting what that person has. Why not then make it allowable?

Plus does your HOA even have a fining schedule to include such things? Our HOA we can remove the violation and send the owner the bill for the removal/repair of such ARC violations. If they do not pay that bill, we can lien them for it. We never fined.

Former HOA President

MichaelS56 (Minnesota)
Posts: 859

Posted:

Once again, here is a situation where an ARC is given the power that is equal to a Board of Directors. In my opinion, the governing documents should not allow a committee that was not elected by the residents to have the same power as the Board of Directors such as levy fines or declare violations. The initials A R C stand for Architectural "Review" committee.

Some Associations name this committee Architectural Control committee.

LetA (Nevada)
Posts: 2,679

Posted:

The previous ARC committee approved the build, the current ARC committee don't have a leg to stand on. If your HOA pursuits this, it will turn ugly fast with the HOA owing the homeowner a bunch of money in litigation. Unless you want to pay more in months assessments because your D&O insurance rates will skyrocket.I would highly suggest to your committee to back off.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By MichaelS56 on 12/20/2021 4:31 AM
Once again, here is a situation where an ARC is given the power that is equal to a Board of Directors. In my opinion, the governing documents should not allow a committee that was not elected by the residents to have the same power as the Board of Directors such as levy fines or declare violations. The initials A R C stand for Architectural "Review" committee.

Some Associations name this committee Architectural Control committee.

I agree. Doing things like this undermines owners' ability to hold the board accountable for what happens on their watch. And it creates a group that has power but apparently little to no accountability.

The same thing can happen when homeowners are able to override the board's financial decisions. Board members have a fiduciary duty to the HOA, but homeowners have none and may act in their own self interest (even if that self interest is detrimental to the HOA).

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MichaelS56 on 12/20/2021 4:31 AM
In my opinion, the governing documents should not allow a committee that was not elected by the residents to have the same power as the Board of Directors such as levy fines or declare violations.

I have yet to see governing documents or an appeals court case attest that an architectural yada committee has the same power as the board.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CathyA3 on 12/20/2021 7:05 AM

Board members have a fiduciary duty to the HOA

Yet as you know, Boards frequently and woefully underfund reserves.

I think we all know the HOA/COA system of volunteers running a corporation, that is typically responsible for an enormous budget and the soundness of people's housing and neighborhoods, is deeply flawed.

DavidG45 (Delaware)
Posts: 994

Posted:

As long as this 15-month post has been revived, I will provide an update. Based on advice here and elsewhere I notified the resident and the ARC that since his deck was approved by the ARC prior to being built, he is considered in compliance. He did not have to pay a fine, and his storm door was approved.

KerryL1 (California)
Posts: 14,550

Posted:

Appreciate the update, David.

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