MD Architectural Review Application Review Under HOA Act

Curious what others' thoughts are on this. HOA approved an application for a fence completely outside of the HOA design guidelines (it's not even close). A homeowner has requested copies of all records related to the approval including minutes from the committee meeting. (The committee holds regular meetings but generally does not announce when they are unless you have an application pending. They certainly don't send any notices.) The disclosure provisions of the MD HOA Act are here:

https://law.justia.com/codes/maryland/2019/real-property/title-11b/sect-11b-112/

I also copied them below. Can the HOA refuse to disclose the documents relating to the approval on the basis of them being "confidential"? Does it matter whether the committee meetings are required to be open to the members under section 11b-111 (also copied below)? Are the committee meetings within the scope of 11B-111 if the committee does not include board members but has authority to approve and disallow applications subject to appeal to the BOD?

11B-112

Subject to the provisions of paragraph (2) of this subsection, all books and records kept by or on behalf of the homeowners association shall be made available for examination or copying, or both, by a lot owner, a lot owner’s mortgagee, or their respective duly authorized agents or attorneys, during normal business hours, and after reasonable notice.

(ii) Books and records required to be made available under subparagraph (i) of this paragraph shall first be made available to a lot owner no later than 15 business days after a lot is conveyed by the declarant and the lot owner requests to examine or copy the books and records.

(iii) If a lot owner requests in writing a copy of financial statements of the homeowners association or the minutes of a meeting of the governing body of the homeowners association to be delivered, the governing body of the homeowners association shall compile and send the requested information by mail, electronic transmission, or personal delivery:

1. Within 21 days after receipt of the written request, if the financial statements or minutes were prepared within the 3 years immediately preceding receipt of the request; or

2. Within 45 days after receipt of the written request, if the financial statements or minutes were prepared more than 3 years before receipt of the request.

(2) Books and records kept by or on behalf of a homeowners association may be withheld from public inspection, except for inspection by the person who is the subject of the record or the person’s designee or guardian, to the extent that they concern:

(i) Personnel records, not including information on individual salaries, wages, bonuses, and other compensation paid to employees;

(ii) An individual’s medical records;

(iii) An individual’s personal financial records, including assets, income, liabilities, net worth, bank balances, financial history or activities, and creditworthiness;

(iv) Records relating to business transactions that are currently in negotiation;

(v) The written advice of legal counsel; or

(vi) Minutes of a closed meeting of the governing body of the homeowners association, unless a majority of a quorum of the governing body of the homeowners association that held the meeting approves unsealing the minutes or a recording of the minutes for public inspection.

(b) (1) Except for a reasonable charge imposed on a person desiring to review or copy the books and records or who requests delivery of information, the homeowners association may not impose any charges under this section.

11B-111

Subject to the provisions of item (4) of this section, all meetings of the homeowners association, including meetings of the board of directors or other governing body of the homeowners association or a committee of the homeowners association, shall be open to all members of the homeowners association or their agents;

(2) All members of the homeowners association shall be given reasonable notice of all regularly scheduled open meetings of the homeowners association;

Usually, decisions regarding individual homeowners are confidential because it's between the homeowner and the association, but who's requesting the information - the homeowner who got permission, the one whose own fence application was denied, a homeowner who lives close to where this fence will be built, a nosy neighbor?

I don't know why the minutes would shed any more light on this anyway - meeting minutes generally reflect what the board or advisory committee, as in "the committee review Mr. Z's exterior change request and voted to deny it, or table the matter until the homeowner presents additional information regarding the request, etc." They shouldn't include a note for note recap of who said what - if you've read any of the discussions on meeting minutes on this website, you know or should notice people usually get in trouble because they don't stick to the basics, but include inflammatory or extemporaneous information that's not even related to the agenda item.

If the committee meetings were open, it seems to me you could have attended and heard the conversations yourself and found out why the fence was approved or not. Perhaps the design standards have been updated and you weren't aware of them, or there's another reason for the variance (maybe the design of this fence is more conducive to this neighbor's lot as opposed to yours?

You don't say what your interest is in all this - if you're a board member, go to your association attorney. Most of us on this site aren't attorneys, haven't see what the committee looked at, and besides what's true or isn't true in your state may not be the case in mine. If you're the homeowner whose fence was denied or you live next door or across the street from this, you could man up and ask the neighbor yourself how he/she got approval for something that's outside design standards. If your own request was turned down recently, file an appeal and ask the same question, but you may or may not get a response from the neighbor or the board.

From there, you'll have to decide if this is worth pursuing in a lawsuit, which of course, will take time and money, and there's still no chance you'll win.

I didn't say you wouldn't win - civil lawsuits are a crapshoot in that you and I might feel differently on the same issue (which is why it's come to court action), but it's up to the judge to sort it out. Sometimes the answer is somewhere in the middle, the judge may recognize that and order both sides to go back and negotiate this - if that still doesn't work the judge may render a decision. There's also alternate dispute resolution when a mediator will meet with both sides and negotiate a resolution or a formal arbitration process where both sides agree in advance to comply with the decision. The losing side may have to reimburse the other for expenses, as both sides start by splitting the cost.

The question I'd have is what do you want to accomplish with a lawsuit - make the homeowner tear this down? I'd understand that if the owner put this thing up without any board approval - in which case the BOARD should go after the homeowner. Homeowners can also enforce CCRs against each other, so if you're really honked off by this, go after the owner yourself in small claims court. You will probably need to come up with more justification than it doesn't meet the design standards so what's your beef with this fence - the fact that it's vinyl (I haven't heard of a plastic fence) or something else? How is it affecting your quality of life - if you live far away from this house, this owner's next-door neighbor might have a bigger issue with it than you, and personally, I'd be more inclined to listen to him or her.

If you're the nosy neighbor, let's put that energy to better use by....you and your like-minded neighbors attending the next board meeting and expressing your concerns. For all you know, the board and/or committee chair is already working on a response, so make the time to show up and see what happens. If it doesn't come up, YOU can express your concerns. Since people's interests and tastes do change, this could be a good time to take a look at the standards and see what needs to be updated. That's a job for an advisory committee - perhaps you can volunteer to be on it?
Then you can do things like take a poll of the homeowners to see what they think, or talk to few fencing companies and get an idea of what people are buying. Hold a few homeowner meeting to discuss proposed amendments, get more input and finally make some recommendations to the board for its review and final approval. People who already have fences may not need to take theirs down right now, but should be told once the fence begins to fall apart, the replacement will be approved based on the new standards.

Yes, all that takes longer, but it's more productive in the long run. If these standards are written in the CCRs, you'll probably need a certain percentage of homeowners to approve amending that portion. If your board is authorized to establish additional rules and protocols as long as they don't supersede the CCRs, all you'd probably need is a board resolution to amend the rules. Read your documents to see how this is done.

If the board blows you off, there's nothing wrong with pushing for those committee members to be replaced - they serve at the pleasure of the board anyway. Or run for a seat on the board, vote the current group out, and replace the committee.

p

Have you you asked the board why they approved a fence that is so different and outside of the requirements from your CCR's? Not sure size of the community, who's running the show, if you have a rapport with any of the BOD. It seems reasonable that since have spoken with other homeowners who are also in disagreement with this particular style of fence that it would be a first avenue to request more information. Just wondering what their response was when asked.

Can you provide the exact wording of your CCR's for fences? Just wondering how they laid that out for homeowners to interpret.

The answer has been that they can’t talk about it. That’s largely what led to my request for documents. I tried to attach screenshots of the guidelines but it didn’t work. You can see the three relevant shots here:

https://www.dropbox.com/sh/y19xu5l0mrwba7g/AACxnOdT9aS0wBtyME6pJp0ba?dl=0

I am curious, how many CCRs have you read that under Architectural Review, or anywhere else in the CCRs that there is listed Design Guidelines or standards for the community.

-- I studied the Maryland HOA Act and the Maryland corporations statute with regard to records inspection. In my opinion a court would rule that a member of your HOA is in fact entitled to inspect the Minutes of the Architectural Control Committee (ACC, or whatever it is called at StephenC4's HOA) meeting.

-- I reject anyone's contention that the basis for approving a member's application for an architectural ____ (whatever) should be confidential.

-- If I recall correctly, Florida for one appears to have recognized that transparency with regard to ACC approvals will cut down on litigation. In particular, I would expect claims of selective enforcement may diminish if full transparency (with regard to ACC approvals/disapprovals) is the rule.

-- StephenC4, as a first step, a member at your HOA should write a formal letter citing the law (both the relevant parts of the HOA act and the Md corporation act, or maybe just the HOA Act). It should be emotionless, polite and just the facts. Send the letter certified mail, return receipt requested. Keep a log of all communications concerning this records request. Save all emails on your server.

ME? I'm just a noob Max, (and please consider that when conversing with me that most of what I say comes from a place of ignorance and willingness to learn and hear others' interpretations/opinions). I have personally read the CCR's for about three associations in my lifetime and only the current HOA which I serve as Secretary/Treasurer are the ones I'm most familiar with and they do not include any reference to creating or maintaining guidelines at all nor are any guidelines included. I was yesterday years old when I learned the hierarchy of documents for an HOA and how that could come into play when challenging a guideline or a CCR. How about you Max? You seem pretty familiar with the territory. What is your take on the guidelines versus the CCR's?

The reason I mentioned it to Stephen was to play devil's advocate here that perhaps the person who got a fence outside of the guidelines did so by using the hierarchy of the documents. So I was wondering, what do the CCR's say about fences versus the guidelines? Is it specific? And also because we are trying to revise our section on fences so I wanted an example from another community.

No, the primary issue I have is the section of the guidelines that says privacy fences are prohibited. The fence installed is a privacy fence. Although, the color chosen is also inconsistent with the design guidelines. It’s a beige color that doesn’t match the beige siding on the home. Its also a corner lot with the fence within 5 feet of the sidewalk, which isn’t permitted.

Could you share with the rest of the class?

Thank you for your well thought-out and detailed thoughts. I do have an advantage here, in that, although I have not yet mentioned it, I am, in fact, an attorney. I normally practice in the area of tax, so this isn’t my general area but I have done a few pro bono litigations in Family Court, etc. So, I do know my way around statutes, regulations, and the courthouse. I have now sent three communications to the property manager. Each receiving only a perfunctory and very delayed response. The reality is, if they have nothing to hide, they should just disclose the records. Maryland has a strong presumption of disclosure with a limited and enumerated number of exceptions. They’re repeated refusals leaves me curious about what exactly it says that they don’t want me to see. I did fire off a quick response to the last email pointing out that the Maryland HOA act doesn’t define official records nor does it use the term official records at all. I don’t expect a response to that short email but I figured it will set them up for the next written demand.

I have a number of issues with how the HOA is run. For example, the bylaws require a secret ballot election for the board. But the last election was conducted via a survey monkey link which required you to provide your name and address as part of the vote process. It was a contested election, and I don’t know how close it was because they never announced the results other than who the winner was. The current president is a nice guy, but his primary goal in running the HOA seems to be Being everyone’s best friend. In my experience, that’s not the right way to run an HOA. You have to be willing to make the hard decisions and do what the covenants require even when it’s unpopular. They also don’t properly notice the architectural committee meetings. They’re just sloppy. I prefer a tighter ship.

Stephen,

Based on personal experience, attorneys can influence whether an association discloses information. You are also dealing with a management firm who is the largest in the United States, if not the world. They realize that if they can force owners to have to use their money to take on their association, owners challenges drop like flies.

Unfortunately (and fortunately for a host of reasons), it’s Anne Arundel County. PG and Montgomery both have an office for this type of thing.

MD law requires a secret ballot election unless the bylaws permit otherwise. Ours do not. In Maryland, I just walk up and give them my name and get a ballot to vote. My name doesn’t go on the ballot. I don’t think they do anywhere. When I vote by mail-in or absentee, my name and signature go on the envelope, but they are removed before the ballot is opened. The whole point is to not be able to tell who voted for whom.

According to the map I am looking at, Riverside, CA

My dues get sent to Phoenix, AZ.

That's where all my association's dues go also.

I believe Maryland allows online voting for HOA's, which wouldn't violate any secret ballot provisions, if any, you may have. This is based on reviews from a company that does HOA online voting throughout various states.

Should Survey Monkey have been used, NO, NO and NO.