Arch Mod Revision

I would stop swirling in threat of lawsuits thinking. That will just circle you all down the drain. Instead concentrate on the solution. Which may mean others in the same situation will probably incur also. I highly doubt this would effect one person if they did the same project. Construction usually repeats it's own mistakes if you have the same builder.

Simply get to the issue of what is so upsetting. Discuss it in an open meeting with other people so concerned. It may be the solution this owner had to come up with will have to be the standard for others. It also may mean it can be modified after consulting experts.

Whatever is decided write it down and make notes of it. It is important for record keeping in the future.

Note: Our HOA no one used the fireplaces much either. We told everyone if they were to use them, they had to be cleaned properly by a chimney sweep company once a year. That may be something to look into other than structural changes.

Without seeing what your CC&Rs say about the structure of your buildings and the definitions of "unit", "common elements" and "limited common elements", I'm going to guess here and say that this request shouldn't have been approved - especially if there also was an unapproved modification to the plan during construction. Anything that affects structural components in attached housing can be problematic. This is what the board is fussing about when they say that changes to boundaries (and definitions of unit, common element, etc.) require an amendment approved by 100% of the membership. If somebody grabs some of the common elements, that person has taken property away from all the other owners.

The fact that the HOA now has less to maintain should not have been a factor in approving the plan, IMHO. In fact, I'd consider that evidence that the homeowner altered components that should not have been altered, which supports my opinion that this change should not have been approved at all.

You may also have changed the nature of your insured property, and your HOA's insurer will probably have an opinion about this - you should discuss this now, rather than finding out later that you have some under-insured property.

The problem is now where to go from here, if your board in fact screwed up which I believe they probably have. I recommend a chat with the HOA attorney to: 1) determine whether or not you have approved an unlawful amendment to your CC&Rs; and 2) how to remedy this for the least possible cost.

With others, Patricia, need more from your documents. With Cathy, need definition of "unit." Also would like to see the "altering the boundaries of the unit" section.

In CA, the language is "exclusive use common area." So yes, is the balcony EUCA, Patricia? Do the CC&Rs say who maintains/repairs/replaces balconies?

Are all balconies the same size? What is the sf of the addition?

IMO, the Owner made a huge mistake by altering the EUCA or common area structure without ARC permission. Your documents probably state the board can force the Owner to place everything back to it original configuration. BUT, if the board did this, they'd be demanding he build in a structural weakness since the fireplace had no footing. OR they could direct the Owner to build the missing footing?? To me, this "solution" creates problems for the HOA that are pretty easy to imagine. And, also in my opinion, for no compelling reasons. I don't think that other Owners MIGHT whine is a good reason to have him tear out the work

The Board needs to ask itself what is in the best interests of our corporation? I'm thinking, since the owner's work was supervised by both a structural engineer and an architect, that they get stamped certification from both that the change is structurally sound and complies with all muni codes.

If it makes them feel better, per your docs, they probably can fine the Owner for not complying with ARC requirements. We had a similar fireplace case here. The Owner took it out and replaced that piece of his interior wall with window glass. We happen to have an architect on the premises for an HOA project. He examined the change and certified that it was structurally sound. The Board fined the owners $500. I suppose your Owner's dues can be increased to cover the additional sf?

Then, the board needs to craft some requirements and guidelines for fireplace removal. Any owner who wishes can follow them and take out their fireplaces.

Melissa,

Thanks. I agree. I would like to avoid any lawsuits. Your perspective is excellent. Other Board members are saying they will NEVER approve this modification in the future. But I have had homeowners ask for several years if they could remove the fireplaces. I've always told them to file an Arch Mod. This is the first one to do it. And I am sure not the last. The best resolution should be to design a plan to follow if and when they run into more construction defects.

Thanks, Patti

Augustin,

Our CC&Rs say:

The approximate location an physical boundaries of Units, Exclusive Use Common Areas and Common Area are shown on the Condominium Plan. The actual, as-built dimensions of the structures, either as originally constructed, or as reconstructed in accordance with the Governing Documents, shall be presumed the true boundaries and take priority over any legal description in a document, regardless of minor encroachments resulting from construction settlement, lateral movement or other causes.

A Unit consists of the area bounded by its perimeter walls, ceilings, floors, windows, and doors, including the wallboard, plaster, paneling, carper or other finishes on these surfaces. A Unit includes (i) the paint on the interior surfaces of the window and door frames located or exposed within the Unit and (ii) plumbing, heating, air conditioning and electrical fixtures or appliances located or exposed within the unit. A Unit does not include (i) structural components of walls, ceilings, and floors, (iii) portions of plumbing, heating, air conditioning or electrical systems serving more than one Unit.

The Common Area consists of the entire Property except for the Units.

Exclusive Use Common Area consists of (i) those portions of Common Area reserved for the exclusive use of an Owner on the Condominium Plan in this Declaration, and (ii) exterior shutters, awnings, window boxes, doorsteps stoops, porches, balconies(both enclosed and semi-enclosed), patios (both enclosed and semi-enclosed), exterior doors including sliding glass doors and garage doors, frames and hardware associated with any other fixture designed to serve only on Unit but located outside the interior boundaries of that Unit.

---------------- So, as I read it the "Common Area" was NOT modified. The "limited common area" has technically been altered because the balcony now goes over the fireplace footing. I believe alteration of the unit really plays if you are encroaching into common area, space that is truly accessible and serves the other homeowners. The balcony and fireplace footing only serve the one unit, not at all accessible to anyone else.

HOA maintains the balconies. Yes, this increases, altho nominally. HOA also maintains the outside of the buildings, the chimney caps and spark arrestors, so I feel like it is a pretty even trade, probably benefitting the HOA.

Yeah, homeowner should have stopped construction and notified the Board. I suspect the ultimate outcome would have been the same but maybe the Board would have felt they had some buy in and there would be less drama now. Maybe. Who knows.

Thank you

This is accurate, in my opinion. You may think it's small potatoes, but I know COA attorneys who read a board the riot act for approving such alterations instead of getting homeowner approval pursuant to what the Declaration requires for an amendment and more. Property boundaries (whether they involve unit boundaries, common area boundaries, or exclusive use common area boundaries) are a big legal deal. In my opinion, the Board should be steaming mad, if only to send a message to all other owners to not pull a stunt like this. And yes, this was a stunt. These owners should have darn well known they could not do this without checking with the Board and letting the COA attorney figure out what to do.

A massive fine should be applied for failure to get ACC approval (of the actual work done). If the COA has to hire its own structural engineer (and no, not the guys/gals who did the owner's work), the owner will be assessed for the bill. If the COA plat has to be re-done, the owner should pay for every cent of it. If the balcony can be shortened, this may be best. Your Board should hit these owners with everything it has. This will cost the Board a lot of time and the COA, a lot of money. Make an example of them. Rub their noses in it the way a dog's nose is rubbed in its accident. There is no excuse for what they did except they wanted the fireplace gone and were happy to have a longer balcony, all while clueless about the legalities here.

I look forward to others' thoughts here.

Pat

Help me understand. Was the balcony extended outward or just sideway some? In either case, by how much?

John,

Balcony was not extended outward. It was extended sideways over the firebox footing - a total of about 6 sq ft. Balconies are only about 2 feet, more decorative than useful.

Thanks

Augustin,

Ouch!

I am not convinced the homeowner has altered the unit boundaries. They already owned the space occupied by the fireplace box, which was outside the unit an on the side of the balcony. In my view, they only converted this space from inside to outside use.

Also, this homeowner came to the Board with all the documentation from the architectural engineers showing how the conversion could be done safely, etc. I do not feel this was a stunt at all! It was not until the work was well underway when they found the defect from the original construction that impacted the remaining balcony. Because the original builders did not follow the specs, left out a load bearing beam, now the balcony could not be safely supported without the footing of the fireplace. So now what?

As I see it, the error was in not stopping the construction ad bringing it up to the Board. I agree. But it seems to me the structural engineers found a "reasonable work around". So now what?

Because other homeowners would like to make the same conversion, I'd rather find a way to make it possible in the future - allowing for potential construction problems.

I don't agree with shoving their nose in the problem. I don't believe the error was malicious. We all have to live and play in the sandbox. How do we solve the problem for the best future of all?

Well, the Owner has altered the unit boundaries because the unit now is, say, 1,100 sf instead of 1,106 sf. IF your HOA's units are assessed based on their sf, this Owner's dues will decrease a few cents, right? It's. true that it decreases th overall sf of the condo units. I'd ask your HOA attorney if this matters given the size of the decrease. That the side of the EUCA is increased may not matter-- I don't think! Maybe th insurance on the building would increase 40 cents a year?

Can you cite form your CC&Rs any section about "altering the sq ft "of a condo unit?

Thanks for telling us the additional 6 sf. Since balconies vary in size, as ours do in our high rise, I don't think this tiny additional sf to the balcony will get anyone's undies in a knot.

To deter other Owners from increasing their balcony size or otherwise structurally tampering with the exclusive use common area, I still believe the owner should be called to a hearing and fined substantially for not complying with your ARC guidelines. You do have a fine schedule that show that fines can be levied for not adhering to such gudilines, right?

Separately, and for the good of your corporation, since owners have over time wanted to eliminate their fireplaces as they do in our high rise, too, get started on crafting policy to do so. It probably will cost a bit, but why not get some. estimates from an architect or structural engineer on how much it might cost to prepare guidelines that compost with your own budding design, structural integrity and city/etc. requirements.

You might even form a committee to initiate action on this matter. Budget for much of this for 2023.

I'm not so sure the Board erred. IF your CC&Rs state that the Board can approve structural changes to the EUCA, as do ours, I don't think they were amiss. Ours give the ARC such authority, but no Owners has ever asked to alter a EUCA. And I'm positive the ARC would kick it up to the board. IF even considered, the ARC would require an engineer or architect's certification, approval of the plans AND probably supervision.

Re: the missing beam. that, of course is a construction defect. How old is your HOA, Patrica? Btw, how many units are in it?

I agree with you, JohnC, except, I think the fine, if permitted by their documents, should be substantial to deter others from not getting complete approvals for the ARC.

She does need to find in her CC&Rs the HOA is permitted o allow wonks to make structural changes to the exclusive (or limited in other states) common areas. Our do permit that ARC approvals, which probably would be sent to the board with archtiectrual certification that the structural integrity isn't harmed. Owners pays for such inspections, cert, etc.

Our HOA was built in the late 60's. There are 51 units.

This construction defect actually doesn't surprise me. The few remaining original owners tell a story of having discovered some significant defect soon after occupying their homes. They put all their possessions into storage and moved out (at their won expense) for a couple months while the builders worked on shear walls for earthquake security. Hence, the sensitivity to remodeling. I get it.

This homeowner has structural engineers, certified architects, licensed contractors. And the City has been out every step of the way signing off on each step.

Yes, townhomes - no one above or below. Each townhome has a fireplace. Fireplaces are essentially the same size, unless there are inches in differences. Balconies differ in location size and number. Some homes have 4, others 2 or 3. But all connect to the fireplace as they are central with balconies on the sides.

The balcony is similar to the others, not noticeably different. My goal at this point is to move forward and allow others to do the same, understanding they may run into the same defect and the Board may need to allow the same "work-around" solution.

As to the fine - I can go either way. I have mixed feelings if we allow others to use the same solution.

The more info you provide, the more convinced I am that this modification should not have been approved. We do not allow any modifications that go through exterior walls, roofs or foundations.

Generally fireplaces are part of the unit (owned, insured, and maintained by the homeowner) whereas balconies are usually common elements or exclusive use common elements (owned, insured and maintained by the association). That's where the potential issues are, since these things can't be swapped. Your CC&Rs may define these things differently, but the principle is the same.

It doesn't matter what the homeowner would be "happy to do" - it matters what the CC&Rs say about who is responsible for what.

The fact that you think the HOA comes out ahead suggests to me that there probably was some monkey business with the various components which will amount to an unlawful modification of your CC&Rs. At the very least you'll have structures and responsibilities that are not defined and may not be properly insured.

Since you believe that others may request similar modifications, y'all need to get your acts together. You may get away with it until there is an insurance claim, or maybe you won't. At the very least you may be saddling future boards with a bigger problem that is a lot more costly to fix.

A further comment on what homeowners are happy to do with modifications:

What happens when they sell the home? Will the new owner be happy to be saddled with additional responsibilities, or will he expect the association to comply with the governing documents that were disclosed when he bought the home? Will he be willing to call his attorney if the board tries to hang tough? Or will the board cave and let the rest of the membership pick up costs that they never agreed to pay?

At the very least, you're setting yourselves up for on-going conflict unless you figure this out.

Looks like you're headed in a good direction, Patricia. With a lot of demand for this modification, I agree with you that your board should take the steps with your HOA counsel to get it done. But s/he will not know th structural aspect. If it takes an amendment to your CC&Rs you'd even be permitting owners to decide. Well before then, IF needed, survey ones for their opinions on this topic. Might save a lot of time & n money.

Again, it may only need an amendment IF your CC&Rs prohibit any alteration to the exclusive use common area. If such ARE permitted with ARC or Board approval, like ours, all the better. You haven't said what they permit re: EUCAs.

Your insurance, a structural engineer and an architect have approved the "illegal" modification. I'd say, as in my way above, each of those stamp their certified approval as our architect did a on a fireplace alternation. Even if they've sign-off on the project, as our CC&Rs require for owners' separate interest (their own unit), I don't think they'd put their rep at risk.

I still say for now call the owner to a hearing and fine him for violating your ARC guidelines. In further owners will no doubt have to undergo quite a procedure to make this modification. With your courses advice you may be able to fashion a maintenance/repair/replace agreement which the Owner signs & even which is recorded on the Owners' deed. These idea all need your attorney's opinion.

And given how hard you're thinking about this, you are aware of the CA requirement that all elevated structures, e.g., balconies, must be inspected by certain professionals by 2025 IF they're partially wood. So...are yours? If so, you'll learn before long about any additional defective construction.