Previously Approved Improvements Denied by Current BOD

JasonC10 (North Carolina)
Posts: 4

Posted:

After moving into our new house, we submitted plans and a request to construct a metal building on our property to the HOA president. The president approved the plans, even though we discovered afterwards that metal buildings were not permitted, per the covenants, which state accessory buildings must be the same color and material as the main dwelling.

The president that approved our metal building has since resigned as president (after moving out of the subdivision) and a new president has taken over. The current BOD is now saying that despite the approval we received, if we move forward with constructing the metal building, we are subject to a lawsuit by anyone who doesn’t approve of the metal building currently living in the subdivision, or by anyone who may move into the subdivision in the future. We were also advised that even though the previous president approved it, that doesn’t prevent any legal action against us, nor does it serve as a “get out of jail free” card.

Any guidance? Since we have approval, can we proceed; or, because the approval goes against the rules (even though the past president approved it), are we liable?

AugustinD
Posts: 3,698

Posted:

JasonC10, what does your HOA's Declaration say is necessary for approval of a building on one's lot? In the many governing documents I have reviewed over the years, the Declaration (a.k.a. CC&Rs) specifies that approval is always via either a committee or the HOA Board. If the President acted unilaterally to "approve" the building, then chances are this is inconsistent with the Declaration. The approval has no legal force.

I would keep in mind the CC&Rs/Declaration are considered legally enforceable contractual terms to which all owners agreed to abide upon buying the lot.

The Board is correct that constructing the building does make you vulnerable to a lawsuit by owners seeking to enforce the covenants. A future Board could also choose to take you to court and seek an order to enforce the covenants.

Some HOAs allow any shed. Some HOAs do not. Some HOAs allow certain sheds. By my reading, nationwide sheds and the like are often the cause of disputes at HOAs.

SheliaH (Indiana)
Posts: 6,964

Posted:

I'd request an appeal - don't do anything until this is resolved and if you do get an exemption, be sure to get it in writing. Incidentally, if you got something in writing from the last president, make sure you use that as part of your appeal - if not, you may be SOL.

You already know about the CCR restriction, but it may also be a good idea to find out how exterior change request were supposed to be handled. In some communities like mine, the board reviews the request, while in others they're reviewed by an advisory committee which may make a recommendation to the board to approve or deny. In this case, you did ask for permission in good faith and the last president had to be aware of the procedure, so why did he/she do otherwise, or at least notify the board?

He/she may think it's no longer his/her responsibility since they're no longer in the community (or an HOA member), but if you've already spent some money on preparations, perhaps you could consider legal action against the former president. See how your appeal goes first - if the board comes up with a compromise you can live with, it may be best to chalk it up as a nasty surprise that won't happen again - or go to an attorney to see what your options are and if it's worth pursuing.

Of course, you know it may be worth your while to take a good look at the documents (CCRs and Bylaws) to see what other requirements are out there that you should be aware of, especially if you're planning more exterior changes.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The last time I checked the president had no such powers. That is an ACC decision or the board. So I would not consider the first permission correct. It failed the correct process.

Former HOA President

SteveH35 (Washington)
Posts: 339

Posted:

Quote:

Posted By JasonC10 on 05/16/2022 5:05 AM
After moving into our new house, we submitted plans and a request to construct a metal building on our property to the HOA president. The president approved the plans, even though we discovered afterwards that metal buildings were not permitted, per the covenants, which state accessory buildings must be the same color and material as the main dwelling.

The president that approved our metal building has since resigned as president (after moving out of the subdivision) and a new president has taken over. The current BOD is now saying that despite the approval we received, if we move forward with constructing the metal building, we are subject to a lawsuit by anyone who doesn’t approve of the metal building currently living in the subdivision, or by anyone who may move into the subdivision in the future. We were also advised that even though the previous president approved it, that doesn’t prevent any legal action against us, nor does it serve as a “get out of jail free” card.

Any guidance? Since we have approval, can we proceed; or, because the approval goes against the rules (even though the past president approved it), are we liable?

Jason, as Melissa points out, the board president has no more authority than any other volunteer director. That said, a board can reserve certain powers to individual volunteers, but approving ACC/ARC applications would never be reserved to one person. That's a task for a committee and/or the Board itself.

While it is possible that the board can (intentionally or unintentionally) approve something that's prohibited by the declaration / CC&Rs, you'll end up mired in an unpleasant situation by violating a recorded document that supersedes the authority of the board. Rules and regulations are a different matter. If the community created a rule that governs the material you can use and the board approves you building a metal structure, you'll have a reasonable argument that you did everything you needed to do.

Regards,
Steve

SheliaH (Indiana)
Posts: 6,964

Posted:

Accidently left this off in my response - if your CCRs state accessory buildings must be the same color and material as the main dwelling, is there a reason your building can't comply with this requirement? I know you want a metal building, but if this is the rule and this would be possible, I don't see the problem.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JustinT5 (Alabama)
Posts: 50

Posted:

Quote:

Posted By SheliaH on 05/16/2022 8:14 AM
Accidently left this off in my response - if your CCRs state accessory buildings must be the same color and material as the main dwelling, is there a reason your building can't comply with this requirement? I know you want a metal building, but if this is the rule and this would be possible, I don't see the problem.

cost would be the big factor. metal buildings are typically much less expensive.

BillD16 (Texas)
Posts: 971

Posted:

I am shocked - shocked! - to hear that a Board President has overstepped the limits of their authority!

BillD

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

Posted By BillD16 on 05/17/2022 6:08 AM
I am shocked - shocked! - to hear that a Board President has overstepped the limits of their authority!

BillD

Based on the OP's initial post. How can you be so sure that the President didn't take it to their Board for a vote? It only says he had conversations with the President. There may have very well been a board vote and it was the President who told him the results.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By PatJ1 on 05/17/2022 7:22 AM

Posted By BillD16 on 05/17/2022 6:08 AM
I am shocked - shocked! - to hear that a Board President has overstepped the limits of their authority!

BillD

Based on the OP's initial post. How can you be so sure that the President didn't take it to their Board for a vote? It only says he had conversations with the President. There may have very well been a board vote and it was the President who told him the results.

Fair point.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Usually it would come with a signed paperwork with approval and or stated the board or ACC approved. Would not say President approved but board ...

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

That's how we do it and a copy of that paperwork is placed in the permanent file for that home.

Thus, you've learned lesson #1 with dealing with HOA boards - trust but verify, and where appropriate, get it in writing. Assume nothing - one board member may tell you anything, but unless he/she has specific authority (or it's written thusly in the documents), what he/she says means squat.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

PatJ1 (North Carolina)
Posts: 568

Posted:

Quote:

Posted By SheliaH on 05/17/2022 7:44 AM
That's how we do it and a copy of that paperwork is placed in the permanent file for that home.

Thus, you've learned lesson #1 with dealing with HOA boards - trust but verify, and where appropriate, get it in writing. Assume nothing - one board member may tell you anything, but unless he/she has specific authority (or it's written thusly in the documents), what he/she says means squat.

Board's change. Files get lost. Our attorney advised us that the burden is on the homeowner to provide the supporting documentation to "make their case". Without evidence it's all "but they said".

JasonC10 (North Carolina)
Posts: 4

Posted:

Thanks for all the replies!

Here's some responses to the feedback thus far:

Not sure if the past president's approval was based on an review committee's recommendation or not. His email referenced "we're discussing it" in relation to a fence that was part of my request, so not sure if the "we" was just the pres., secretary, and finance officer; or, if he was referencing a review committee.

We did meet with a couple of the new BOD members, to "appeal", arguing we did everything we were directed to do by the president (at that time) to receive approval. Their response was - we're not necessarily revoking the previous approval, but advising that the approval goes against the established covenants (that states materials and colors must match exactly, the existing structure), and that if we proceed, we'll likely be sued. The current BOD (being so new) is acting as both the BOD and the Architectural Review Committee.

Yes, price is a HUGE factor in metal building vs. stick-built. Metal building is around $25,000 vs. the exact same floorplan, stick-built, being quoted at $120,000 (by a contractor) and $45,000 (for one of the "build-a-shed" companies).

We do have previous president's approval of building in "writing", in the form of an email, but current BOD say's that doesn't matter, and that we're still liable.

SteveH35 (Washington)
Posts: 339

Posted:

Quote:

Posted By JasonC10 on 05/17/2022 8:11 AM
Thanks for all the replies!

Here's some responses to the feedback thus far:

Not sure if the past president's approval was based on an review committee's recommendation or not. His email referenced "we're discussing it" in relation to a fence that was part of my request, so not sure if the "we" was just the pres., secretary, and finance officer; or, if he was referencing a review committee.

We did meet with a couple of the new BOD members, to "appeal", arguing we did everything we were directed to do by the president (at that time) to receive approval. Their response was - we're not necessarily revoking the previous approval, but advising that the approval goes against the established covenants (that states materials and colors must match exactly, the existing structure), and that if we proceed, we'll likely be sued. The current BOD (being so new) is acting as both the BOD and the Architectural Review Committee.

Yes, price is a HUGE factor in metal building vs. stick-built. Metal building is around $25,000 vs. the exact same floorplan, stick-built, being quoted at $120,000 (by a contractor) and $45,000 (for one of the "build-a-shed" companies).

We do have previous president's approval of building in "writing", in the form of an email, but current BOD say's that doesn't matter, and that we're still liable.

Jason, you are liable because your Board has no authority to supersede your governing documents. Affirmative defenses are unlikely to overcome the contractual obligations of your recorded declaration / CC&Rs.

SheliaH (Indiana)
Posts: 6,964

Posted:

Sometimes the board doubles as the ARC and that's fine. Ultimately, they're responsible for overseeing the association's operations, so even if there was a committee, it would likely have to send a recommendation to the entire board, which would then take a vote to approve, deny or ask for additional information.

An email IS NOT an approval - these should be sent as a formal letter on the association's letterhead, so the current board is correct. That said, this does give you more ammunition if you want to go after the former president (if you can locate him/her). Moreover, the past president did say "we're discussing it", so YOU should have asked if this was being reviewed by an ARC or the board itself. It would have helped if the president explained the process before all this started, but too late now.

This really isn't looking good for you, so I hope you haven't started work on this building - if so, you need to stop right now and get this resolved. Unfortunately, it may mean you'll have to bite the bullet and build this building according to what the documents dictate.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JasonC10 on 05/16/2022 5:05 AM
After moving into our new house, we submitted plans and a request to construct a metal building on our property to the HOA president. [snippage] Since we have approval, can we proceed; or, because the approval goes against the rules (even though the past president approved it), are we liable?

JasonC10, you have not erected the building yet, have you?

This is really easy. That the proposed building violates the covenants is obvious even to you. The current Board rightly says, in so many words, "No." Hence: Do not erect the building. Re-apply to the HOA for whatever building you want, conforming with the covenants.

If anyone here supports your going forward with the prior plans, I would be surprised.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JasonC10 on 05/17/2022 8:11 AM
Their response was - we're not necessarily revoking the previous approval, but advising that the approval goes against the established covenants

To be blunt, and with the proposed building's construction not even begun: Only an inexperienced Board, that does not even know enough to get some education from the HOA attorney, would give such a mealy-mouthed response that leads an owner to think it might be okay to go ahead.

For HOA Boards and owners alike: Do not violate the covenants, especially when the violation here is obvious. Violating the covenants in general is just asking for confusion among owners; all manner of disputes; and possible litigation in the future.

KerryL1 (California)
Posts: 14,550

Posted:

Entirely agree with Aug.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Jason,

If you've not started construction, I'd work with the new HOA board. It's worth the HOA's time to investigate a unilateral approval of your metal building in direct violation of existing covenants, which are legally enforceable regardless of a former president being incompetent.

You will have credibility in future community matters by playing by the rules....for which you've requested an exemption after knowing your building doesn't comply with deal you signed when joining the HOA.

Protect your community continuity. Remember, you need a building, whether it's metal or not.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SteveH35 on 05/17/2022 8:21 AM

Posted By JasonC10 on 05/17/2022 8:11 AM
Thanks for all the replies!

Here's some responses to the feedback thus far:

Not sure if the past president's approval was based on an review committee's recommendation or not. His email referenced "we're discussing it" in relation to a fence that was part of my request, so not sure if the "we" was just the pres., secretary, and finance officer; or, if he was referencing a review committee.

We did meet with a couple of the new BOD members, to "appeal", arguing we did everything we were directed to do by the president (at that time) to receive approval. Their response was - we're not necessarily revoking the previous approval, but advising that the approval goes against the established covenants (that states materials and colors must match exactly, the existing structure), and that if we proceed, we'll likely be sued. The current BOD (being so new) is acting as both the BOD and the Architectural Review Committee.

Yes, price is a HUGE factor in metal building vs. stick-built. Metal building is around $25,000 vs. the exact same floorplan, stick-built, being quoted at $120,000 (by a contractor) and $45,000 (for one of the "build-a-shed" companies).

We do have previous president's approval of building in "writing", in the form of an email, but current BOD say's that doesn't matter, and that we're still liable.

Jason, you are liable because your Board has no authority to supersede your governing documents. Affirmative defenses are unlikely to overcome the contractual obligations of your recorded declaration / CC&Rs.

I agree.

JasonC10 (North Carolina)
Posts: 4

Posted:

The covenants does include a "variance" statement:

The ARC may recommend to the Board, and the Board may, by the vote or written consent of a majority of the members thereof, allow reasonable variances as to the covenants, conditions or restrictions contained in this Declaration, on such terms and conditions as it shall require; provided, however, that all such variances shall be in keeping with the general plan the improvement and development of the Property. Variances contained in plans that are inadvertently approved by the ARC as part of the proposed improvements shall not be considered as having been approved unless specifically approved by the Board in accordance with the provisions of this Section.

I've emailed the previous president to see if approval of a building that does not comply with the separate, architectural requirements document, was approved in accordance with the above variance, or if the building's material being metal was somehow overlooked.

JasonC10 (North Carolina)
Posts: 4

Posted:

...and we have paused any further action on constructing the building until we determine how to best proceed.

SheliaH (Indiana)
Posts: 6,964

Posted:

And so you'll have to think of a reason for the board to grant you the variance - and you may need more than "but the president SAID I could build it in an email" or "a metal building is cheaper." That said, it could work if you can get materials that look as close to the house as possible without being the same materials, but don't count on it. Prepare for the possibility that you'll either have to construct a building with original materials and pay more or go without a building altogether.

In the meantime, do some comparison shopping anyway for the materials - you might get lucky and find something that will satisfy both sides.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jason

Yes variances can be granted but the issue in your case is were you granted a variance by the BOD? So far all you have is an alleged verbal OK from the past President.

KerryL1 (California)
Posts: 14,550

Posted:

Many have mentioned this already, Jason: The previous president had NO authority to approve your shed. Nor does the current president nor any other individual.You must have written approval form your board of directors (NOT one director) or ARC.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 05/17/2022 12:48 PM
Many have mentioned this already, Jason: The previous president had NO authority to approve your shed. Nor does the current president nor any other individual.You must have written approval form your board of directors (NOT one director) or ARC.

Sorry, The president does have the authority to speak on behalf of the board. If the board made the decision, then the president again is within their right to convey that message. Same goes with the variance, if one was given. If a ARC application was used, it is very possible that the president may have signed off on the application, on behalf of the board. I did so when I was president.

BillD16 (Texas)
Posts: 971

Posted:

Quote:

Posted By JasonC10 on 05/17/2022 12:07 PM
...and we have paused any further action on constructing the building until we determine how to best proceed.

Jason, I really hate to be THAT GUY but: I think you should consult a lawyer about this. I mean: if it might save you serious money on construction costs, then it might be worth the cost to get a genuine legal opinion on this matter.

Bill

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By BillD16 on 05/17/2022 1:17 PM

Posted By JasonC10 on 05/17/2022 12:07 PM
...and we have paused any further action on constructing the building until we determine how to best proceed.

Jason, I really hate to be THAT GUY but: I think you should consult a lawyer about this. I mean: if it might save you serious money on construction costs, then it might be worth the cost to get a genuine legal opinion on this matter.

Bill

Did you happen to have read the variance language Jason posted and then you are going to get another lawyer to interpret that mess?

KerryL1 (California)
Posts: 14,550

Posted:

Jason gave NO indication that the verbal OK he got from the prez was approved by the board. If Jason does think the Board gave the prez th authority to go ahead in conflict with the covenants, that Jason should want to see board minutes showing board approval.

There already are too many posters and board members who think the president has some sort of ultimate authority. Owners too often think they simply can ask their nice neighbor, who happens to be board prez if they may do this and so. This isn't true UNLESS that Board votes that the prez has certain decision-making powers re: certain matters. Non-profits are governed by boards, not presidents.

HOA attorney, K. Richardson ran a fine syndicated on this topic some time ago called something like "The President is Not El Jefe." He points out that the hierarchical structures we're often used to in our workplaces are not transferable to HOA governance.

MaxB4
Posts: 3,513

Posted:

And you served..what..7/2 year terms?

Oops is that too snarky?

SteveH35 (Washington)
Posts: 339

Posted:

Quote:

Posted By KerryL1 on 05/17/2022 1:29 PM
Jason gave NO indication that the verbal OK he got from the prez was approved by the board. If Jason does think the Board gave the prez th authority to go ahead in conflict with the covenants, that Jason should want to see board minutes showing board approval.

There already are too many posters and board members who think the president has some sort of ultimate authority. Owners too often think they simply can ask their nice neighbor, who happens to be board prez if they may do this and so. This isn't true UNLESS that Board votes that the prez has certain decision-making powers re: certain matters. Non-profits are governed by boards, not presidents.

HOA attorney, K. Richardson ran a fine syndicated on this topic some time ago called something like "The President is Not El Jefe." He points out that the hierarchical structures we're often used to in our workplaces are not transferable to HOA governance.

A quote from a CAI publication I can live with:
Boards should understand that the president's power-or authority-is no more and no less than the other board members.

I also particularly enjoy the WA State Nonprofit Handbook:

> The entire board acts as a unit when fulfilling governance functions. Board members generally act individually or through committees when fulfilling support functions.
> Control: No one person owns or controls a nonprofit. A nonprofit is governed by a board of directors.
> To be a valid act of the corporation, the act must be approved by a majority of the directors at a board meeting in which a quorum is present.
> Directors cannot appear by proxy or give their proxies to another director. Directors must be present to listen to the discussion, consider each resolution, and vote based on their judgment.

KerryL1 (California)
Posts: 14,550

Posted:

Very nice citation, Steve, which says it so much better than I.

I guess Max is trying to be clever and snarky, but perhaps he can explain his point. Or, perhaps he has no explanation or reason for noting my years as a director?

BillD16 (Texas)
Posts: 971

Posted:

Quote:

Posted By MaxB4 on 05/17/2022 1:23 PM

Posted By BillD16 on 05/17/2022 1:17 PM

Posted By JasonC10 on 05/17/2022 12:07 PM
...and we have paused any further action on constructing the building until we determine how to best proceed.

Jason, I really hate to be THAT GUY but: I think you should consult a lawyer about this. I mean: if it might save you serious money on construction costs, then it might be worth the cost to get a genuine legal opinion on this matter.

Bill

Did you happen to have read the variance language Jason posted and then you are going to get another lawyer to interpret that mess?

I’m just sayin’: if it’s really a matter of $25,000-$100,000, I wouldn’t rely only on free advice.

BillD

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 05/17/2022 2:40 PM
Very nice citation, Steve, which says it so much better than I.

I guess Max is trying to be clever and snarky, but perhaps he can explain his point. Or, perhaps he has no explanation or reason for noting my years as a director?

For your reference, here is one attorney's description of duties of a HOA President... https://www.davis-stirling.com/HOME/D/Duties-of-President

A president signs contracts, not all seven Board members. A president may speak to the management company, whether it is the manager, CPA or the president, not the other six Board members.

You should read your own CCRs under the section Architectural Review to see how your covenants dictate how the ARC process is supposed to work. According to your CCRs, the ARC makes the decisions, not the Board. The Board handles the appeals and compliance enforcement and doing the hiring and firing of ARC members.

It is highly possible a homeowner went to the president and ask if his ARC application was approved and the president says yes, after a vote of either the Board or the ARC. Kerry, I am wondering who signs your contracts, who signs the ARC application once it is approved. Do all seven of your board members sign the contracts, or the ARC application or the minutes or the checks.

I also understand some posters think that the president doesn't really need to involve the other board members in decisions. This is not what I am saying. I have been doing this too long and realize that a president speaks as the voice of the association, but the decisions made on behalf of the association are done as a team.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

My personal opinion is I would apply for a variance and accept the decision. I can't think of a valid justification other than cost so my guess is it won't be granted. With that said, maybe you will luck out and they will accept your argument that it was already 'approved'.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

As a Former HOA President, I would "speak" for the board/HOA as a "whole" but NOT as an individual. People wanted something that required approval, I would tell them the process of how that happens. Once they followed the process, then I may write or communicate that the BOARD has approved. Which would be documented in the meeting notes. Plus a letter would be given in response for denial or approval. It had the HOA name on it but my Presidential signature.

I've had to deal with members who dealt with the former President. They often would come to the "back door" requesting this or that. He even told them on occassion all they had to do was ask me. (Another lie he told). I would tell them point blank your option is to come to the HOA meeting to present your request. The board would come visit the home as a group after our meetings to discuss the request if it was something like a fence or modification. It was well known it was NOT just my word that got thing approved.

My Job as president was to FASCILLITATE what my membership wanted. It was not to shove it down their throats.

Former HOA President

MelissaP1 (Alabama)
Posts: 13,836

Posted:

As a Former HOA President, I would "speak" for the board/HOA as a "whole" but NOT as an individual. People wanted something that required approval, I would tell them the process of how that happens. Once they followed the process, then I may write or communicate that the BOARD has approved. Which would be documented in the meeting notes. Plus a letter would be given in response for denial or approval. It had the HOA name on it but my Presidential signature.

I've had to deal with members who dealt with the former President. They often would come to the "back door" requesting this or that. He even told them on occassion all they had to do was ask me. (Another lie he told). I would tell them point blank your option is to come to the HOA meeting to present your request. The board would come visit the home as a group after our meetings to discuss the request if it was something like a fence or modification. It was well known it was NOT just my word that got thing approved.

My Job as president was to FASCILLITATE what my membership wanted. It was not to shove it down their throats.

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

Yes, a president signs contracts, but only the board approves contracts. The Board is the decision-maker, not the president. Yes, in our and maybe most, the presidents the prez liaisons with the PM & MC and GC. But the prez in that capacity is not making decisions.

In our assn. the ARC makes decisions. The application rarely needs to be kicked up to the Board, and if it did the Board would decide, not the prez. If the app is denied, the applicant may bring it to the Board, not to the president. The prez doesn't sign the ARC's approval of the ARC app. Any board would be extremely foolish to delegate ARC approval to the president via a vote at a board meeting.

Max wrote: "It is highly possible a homeowner went to the president and ask if his ARC application was approved and the president says yes, after a vote of either the Board or the ARC." It's possible but the OP says no such thing.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, a president signs contracts, but only the board approves contracts. The Board is the decision-maker, not the president. Yes, in our and maybe most, the presidents the prez liaisons with the PM & MC and GC. But the prez in that capacity is not making decisions.

In our assn. the ARC makes decisions. The application rarely needs to be kicked up to the Board, and if it did the Board would decide, not the prez. If the app is denied, the applicant may bring it to the Board, not to the president. The prez doesn't sign the ARC's approval of the ARC app. Any board would be extremely foolish to delegate ARC approval to the president via a vote at a board meeting.

Max wrote: "It is highly possible a homeowner went to the president and ask if his ARC application was approved and the president says yes, after a vote of either the Board or the ARC." It's possible but the OP says no such thing.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 05/17/2022 4:35 PM
Yes, a president signs contracts, but only the board approves contracts. The Board is the decision-maker, not the president. Yes, in our and maybe most, the presidents the prez liaisons with the PM & MC and GC. But the prez in that capacity is not making decisions.

In our assn. the ARC makes decisions. The application rarely needs to be kicked up to the Board, and if it did the Board would decide, not the prez. If the app is denied, the applicant may bring it to the Board, not to the president. The prez doesn't sign the ARC's approval of the ARC app. Any board would be extremely foolish to delegate ARC approval to the president via a vote at a board meeting.

Max wrote: "It is highly possible a homeowner went to the president and ask if his ARC application was approved and the president says yes, after a vote of either the Board or the ARC." It's possible but the OP says no such thing.

Thanks for enlightening me. I didn't know any of that "stuff". I will be sure to invite the rest of the Board members to their board meeting and not just the president.

SteveH35 (Washington)
Posts: 339

Posted:

Quote:

Posted By JohnT38 on 05/17/2022 4:04 PM
My personal opinion is I would apply for a variance and accept the decision. I can't think of a valid justification other than cost so my guess is it won't be granted. With that said, maybe you will luck out and they will accept your argument that it was already 'approved'.

The board is not empowered to grant a variance. In fact, there's really no such thing as a variance to the governing documents which is entirely different than evaluating a violation and determining appropriate enforcement. One comes before, the other one comes after.

Regards,
Steve

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By SteveH35 on 05/17/2022 10:13 PM

Posted By JohnT38 on 05/17/2022 4:04 PM
My personal opinion is I would apply for a variance and accept the decision. I can't think of a valid justification other than cost so my guess is it won't be granted. With that said, maybe you will luck out and they will accept your argument that it was already 'approved'.

The board is not empowered to grant a variance. In fact, there's really no such thing as a variance to the governing documents which is entirely different than evaluating a violation and determining appropriate enforcement. One comes before, the other one comes after.

Regards,
Steve

The OP wrote the following:

"The ARC may recommend to the Board, and the Board may, by the vote or written consent of a majority of the members thereof, allow reasonable variances as to the covenants, conditions or restrictions contained in this Declaration, on such terms and conditions as it shall require; provided, however, that all such variances shall be in keeping with the general plan the improvement and development of the Property. Variances contained in plans that are inadvertently approved by the ARC as part of the proposed improvements shall not be considered as having been approved unless specifically approved by the Board in accordance with the provisions of this Section."

Are you saying this does not apply?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JohnT38 on 05/18/2022 3:15 AM
The OP wrote the following:

"The ARC may recommend to the Board, and the Board may, by the vote or written consent of a majority of the members thereof, allow reasonable variances as to the covenants, conditions or restrictions contained in this Declaration, on such terms and conditions as it shall require; provided, however, that all such variances shall be in keeping with the general plan the improvement and development of the Property. Variances contained in plans that are inadvertently approved by the ARC as part of the proposed improvements shall not be considered as having been approved unless specifically approved by the Board in accordance with the provisions of this Section."

I just loathe this paragraph. To me, "reasonable variance" is one of the words in the HOA/COA lexicon that is most vulnerable to abuse by volunteer directors (nudged by possibly demanding owners). The abuse has a good chance of leading to consequences and conflict among owners down the road.

JasonH10's covenants say what they say. But in my opinion, the only time a board should consider a "reasonable variance" is when a lot is "impaired." By "impaired," I mean the lot will not function the way other lots will unless a variance is granted. (Credit to CathyA3, who has worked with developers for some time, for bringing the industry term "impaired" here.)

AFAIC variances where an "impairment" is not involved do not pass the "reasonable" test of the covenant quoted above.

Why not let the ARC go hog wild and issue a variance any time it wants, without considerations of "reasonableness"? Because then the covenants may as well be thrown out.

Covenants or the HOA's Master Plan always in my experience allude to uniformity of the appearance of HOAs. Granting variances willy nilly will start to violate any requirement the covenants or master plan have as to "harmony."

I am glad SteveH35 posted what he did. On the one hand, I think what SteveH35 posted is in fact the general rule for HOAs without covenants like the one quoted above. I think an understanding why this general rule exists is key to applying the covenant above.

The OP is looking for an angle to win approval of his building. I am just shaking my head. Why? Because the signs are strong that neither the former President nor the current Board understand the slippery slope and legal implications of granting variances willy nilly.

SteveH35 (Washington)
Posts: 339

Posted:

Quote:

Posted By AugustinD on 05/18/2022 8:00 AM

Posted By JohnT38 on 05/18/2022 3:15 AM
The OP wrote the following:

"The ARC may recommend to the Board, and the Board may, by the vote or written consent of a majority of the members thereof, allow reasonable variances as to the covenants, conditions or restrictions contained in this Declaration, on such terms and conditions as it shall require; provided, however, that all such variances shall be in keeping with the general plan the improvement and development of the Property. Variances contained in plans that are inadvertently approved by the ARC as part of the proposed improvements shall not be considered as having been approved unless specifically approved by the Board in accordance with the provisions of this Section."

I just loathe this paragraph. To me, "reasonable variance" is one of the words in the HOA/COA lexicon that is most vulnerable to abuse by volunteer directors (nudged by possibly demanding owners). The abuse has a good chance of leading to consequences and conflict among owners down the road.

JasonH10's covenants say what they say. But in my opinion, the only time a board should consider a "reasonable variance" is when a lot is "impaired." By "impaired," I mean the lot will not function the way other lots will unless a variance is granted. (Credit to CathyA3, who has worked with developers for some time, for bringing the industry term "impaired" here.)

AFAIC variances where an "impairment" is not involved do not pass the "reasonable" test of the covenant quoted above.

Why not let the ARC go hog wild and issue a variance any time it wants, without considerations of "reasonableness"? Because then the covenants may as well be thrown out.

Covenants or the HOA's Master Plan always in my experience allude to uniformity of the appearance of HOAs. Granting variances willy nilly will start to violate any requirement the covenants or master plan have as to "harmony."

I am glad SteveH35 posted what he did. On the one hand, I think what SteveH35 posted is in fact the general rule for HOAs without covenants like the one quoted above. I think an understanding why this general rule exists is key to applying the covenant above.

The OP is looking for an angle to win approval of his building. I am just shaking my head. Why? Because the signs are strong that neither the former President nor the current Board understand the slippery slope and legal implications of granting variances willy nilly.

JohnT: I missed the variance language buried earlier in the thread. Obviously if the declaration / CC&Rs specifically allow for a "reasonable variance" by the Board then sure, but I wouldn't want to be on the receiving end of this slippery slope as a Director when a lawsuit is brought by an owner. Covenants and variances don't mix, even if they say so. I'm in full agreement with Augustin.

Regards,
Steve