Variance language

Well, I found this definition from Googling - "Essentially, a property owner requests a variance when their planned use of their property deviates from local zoning laws designed to protect property values. If granted, a variance acts as a waiver to some aspect of the zoning law or regulations."

I don't know if that helps (in this case, I would think you'd apply it to exterior change requests). More importantly, you really need to get your association attorney to assist you with drafting amendments/updates to your CCRs. You want something that doesn't try to supersede federal state or local law (all of which trump bylaws and CCRs unless your state law dictates HOA documents apply if they're more strict than the statute) and you want them to stand up in court. You may want to start by considering under what circumstances would the board consider a variance and start your draft from there.

Oops, sorry I mistyped your name. Shelia!

I agree with Shelia that especially about variances, you should count on your HOA attorney. S/he probably has a stock phrase to insert in your CC&Rs.

The language depends on if your attached condos or detached homes, in part. but in either case, our owner CC&Rs state that granting a variance to one property does not set a precedent. Requests for variances are decided on a case by case basis. The is not our exact wording, so might be off base a bit.

After 20 years, I think we've had only one request for a variance.

Yes, to clarify: the committee is assembled to identify CC&R points we want to change and suggest those changes. So although we are "rewriting", the final wording will be via our lawyer (as I understand it).

@Kerry: we have detached homes.

In my experience, in the HOA world, "variance" is a word grossly misused and misunderstood by Boards and HOA members alike.

What an owner is doing in his/her home; on his/her lot; in his/her unit either complies with the covenants or violates the covenants.

Some incompetent boards and incompetent architectural control committees think they have a power to grant an owner the righ to violate the covenants. No they do not.

The phenomenon of "grandfathering" comes up here a lot. It's also abused. "Grandfathering" can mean a few things. First and foremost, it should mean the HOA Board checked in with the HOA attorney about something the board thinks needs to be "grandfathered.'

I advise not using the word "variance" anywhere in the covenants.

@Michael: I believe the idea of variances is to avoid having to do battle with members who feel they have a justification for pushing the boundaries of the original restrictions; it provides an avenue so those members can, if their justification is legitimate, come to a special arrangement with the HOA that is above board and hopefully win/win.

@Augustin: My understanding is that a variance does not grant a member the right to violate the rules, but rather waives the HOA's right to enforce a specific rule in a specific instance. This is an important legal distinction for [reasons I don't pretend to understand because I'm not a lawyer].

I do wonder if maybe thinking similar to yours is why variances were not included in my HOA's CC&Rs in the first place. I am of the mindset that I would rather argue over a variance (both as a member who might request one, and if I were hypothetically an HOA board member in a position to approve or deny one) than argue with members who simply violate the CC&Rs, or with an HOA that simply refuses to open its eyes. A variance request process at least gets us talking: provides an opportunity for the member to become better educated about the rules, and the board to become better educated about the member's particular needs and/or concerns.

@Cathy: Agreed about enforcement; that is also the primary goal with our rewrites. With variances, I think the idea is that not all people/properties are in the same situation. A restriction that makes sense or even is helpful for 95% of them may be an unreasonable burden to the other 5%. If there is a way to build that flexibility into the governance then why not do it? Especially if the variance process is straightforward and requires minimal interpretation on either side.

Just one comment on the "unreasonable burden" idea:

In general it sounds good since courts are big on "reasonable" if they have to decide something.

The trouble is that not all provisions of CC&Rs can be waived because they constitute an unreasonable burden - the big one being assessments, which the board has no authority to waive or reduce (although some do try it). If someone stops paying their assessments, they can lose their home to foreclosure. Viewed from that perspective, it's harder to justify variances on less important or less costly things.

In general, I don't like variances because the CC&Rs form part of the contract on your home. It becomes difficult to hold people to the terms of their contracts if it's unclear what they're agreeing to when they sign on the dotted line. And as Augustin noted, "selective enforcement" is grounds to toss out a restriction altogether - and if you can't enforce it, why have it?

So this is one of those ideas that sound good but actually make life more difficult. The more black-and-white you can make your CC&Rs, the better off everyone will be.

Of course if you're working with a lawyer on your re-write, ask what they think about it.

Re: sheds. It seems to me that if the HOA permits them the CC&Rs can also specify that the Board can make rules about their compositions, size, etc.

These can be ordinary rules and Architectural Requirements. Rules are easy to change

Hah, Augustin I read you loud and clear and I will take that advice to heart.

And no I am not any kind of HOA official, just a member who joined a committee.