How to handle old architectural violations

EliG (Arizona)
Posts: 11

Posted:

We are a 30 year old community. Our arch guidelines specify two trees for each property. A new homeowner is relandscaping and wants to plant only one tree. He points to older homes that only have one tree. Probably for 20 years. We don’t want to go back to these houses and ask them to plant a tree. But how do we respond to the new homeowner when he says we can’t force him to plant 2 trees?

ElleN (Idaho)
Posts: 4,420

Posted:

If I were on this board, I would vote to say to the owner: "In general a HOA board is tasked with enforcing the covenants. However as you seem to be aware, this particular situation is difficult. The Board can only present you with what it believes are the facts as it understands them. First, the covenants require two trees. Second, if you plant only one tree, then the HOA reserves the right to issue a notice of violation in the future. Third, //this// board does not intend to issue you a notice of violation. Fourth, future boards have the right to take a different position, including issuing you a notice of violation. Fifth, the current Board has nothing more to say at this time."

The reason for this response is as follows:

The legal defense the owner is (unknowingly) citing is "abandoned covenants" or "amendment via acquiescence." This means that (1) a covenant was not enforced for a long time; and (2) many homes in the HOA are in violation of this covenant, with the HOA never issuing violation notices; and (3) it's obvious to anyone driving around the neighborhood that the covenant is not being enforced. It's possible that if push came to shove, a court would say the covenants were either abandoned or amended due to the community acquiescing for a long time to multiple violations of this covenant. It's possible a court would say otherwise. But who wants to spend tens of thousands of dollars to find out?

It's not the board's job to explain the law to anyone. The board, as non-lawyers and for other reasons, also takes a risk in doing so.

If none of this makes sense, then have the HOA attorney advise your board.

EliG (Arizona)
Posts: 11

Posted:

Thanks for the response. Then am I to conclude that we cannot force the new homeowner to plant two trees?

KerryL1 (California)
Posts: 14,550

Posted:

If the board wants to force this owner to have two trees, it seems to me, they must also force all other owners who don't have two to plant a second tree.I'm thinking that ONLY ford sing him to plant a second IS selective enforcement, where many owners have violated the covenant, but he alone is being forced to comply.

And in reality what would the Board's enforcement be? The Board hires a crew to bring a random tree and plant it in a "logical spot" and bill the Owner? Or the Board keeps fining the Owners till he complies?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KerryL1 on 03/10/2023 9:41 AM
[edited slightly so a person can read it] If the board wants to force this owner to have two trees, it seems to me, they must also force all other owners who don't have two to plant a second tree. I'm thinking that ONLY forcing him to plant a second IS selective enforcement, where many owners have violated the covenant, but he alone is being forced to comply.

I agree.

Plus if the board does try to enforce this, all the owners can claim the covenant is abandoned. Legally they might be correct. But until a court rules, who knows?

If you do not understand, it's because you have not been reading about covenants for ten+ years like the long-time posters in this thread. Give it time to sink in.

SheliaH (Indiana)
Posts: 6,964

Posted:

It may be the older homes had two trees, but one died or had to be taken down because it was interfering with the sewer lines, or got hit by lightning and landed on a roof. Either way, the previous boards let it go for whatever reason - not good for consistency, but I don't know why the homeowner didn't consider those possibilities.

Anyway, the covenants say two trees, so this one will have to bite the bullet and either plant two trees or forget it. As for everyone else, this may be a good time to review the architectural guidelines to see what's outdated or unclear, and then consider what should be dropped, tweaked or perhaps added (see recent discussions on solar panels). I assume these guidelines are in the CCRs, which would require homeowner approval to amend them, but if these are guidelines adopted via board resolution, it'll be easier to change them with another resolution or two.

PS: since there are issues with invasive species and the stuff I mentioned earlier, you might want to have that owner be more specific as to what he or she wants to plant so there are no issues with sewer lines, landing on roofs (or people), etc.

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

EliG (Arizona)
Posts: 11

Posted:

Thanks for the responses. Fortunately, our arch guidelines are not part of our CC&Rs so we can modify them by board action. We have over 900 homes and keeping an eye on all of them is a time consuming process our limited staff cannot take on. It's unfortunate that over 30 years so many violations have taken place without penalty, but at this point we are just trying to figure out how to handle things going forward so we can keep people in compliance.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Eli

Is the two tree requirement in the Covenants or is it just an architectural guideline?

EliG (Arizona)
Posts: 11

Posted:

It's in the architectural guideline.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By EliG on 03/10/2023 11:09 AM
It's in the architectural guideline.

Thus the BOD can change it and/or waive it. Also one might could cite a violation but I doubt one can fine for violating a resolution.

LoriM15 (Florida)
Posts: 1,009

Posted:

The advice from our HOA attorney is that if it the violation is older than three years then you can't really enforce. However, that's not to say that you can't hold a current homeowner with a request to the documents, and it probably says so in your governing documents. Just because a rule was not enforced in the past doesn't mean you can't enforce it now - as long as you do it consistently. So if you make this homeowner put in two trees than every other homeowner who changes his landscaping must put in two trees also.

We run into this issue all the time. Developer let people put in fences or patios or other structures in easements. We do not allow those in easements now. We got "but how about my neighbor who has a fence down to the waterline"? Too bad - that was then - this is now. They can repair, but they can't rebuild.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By EliG on 03/10/2023 11:09 AM
It's in the architectural guideline.

If this "guideline" has no genuine basis in the covenants other than the covenants have some vague language about landscaping being say, 'harmonious,' and so it's just a rule that some former board dreamed up at some point, then an additional proper test of legality is whether the rule is "reasonable."

Given that many homes have had one tree for many years and no one was bothered, I think an argument that the two-tree requirement ensures "harmony" (or similar) fails, and so the guideline is now not reasonable.

EliG (Arizona)
Posts: 11

Posted:

Well the intent of this post was not so much to debate the one tree vs two tree issue. The issue is what to do when people intentionally choose to disregard an architectural guideline because other people have done so and the HOA has not gone after them. We don't really want to grandfather them, but chasing them at this point isn't reasonable. Yet, going forward we don't want people to perpetuate the abuse. And I think some good information was posted here. Thanks again.

ElleN (Idaho)
Posts: 4,420

Posted:

I think Arizona HOA Boards, like Florida HOA Boards, need to adjust their rules to take into account the change in weather patterns. I would vote to change the guideline to //no// trees required.

KerryL1 (California)
Posts: 14,550

Posted:

It really time for the Board to reassess the 30-year old ARC Guidelines. By now the assn. has plenty of mature trees, bushes, shrubs, etc. so it doesn't look sterile and barren as it did when new. In that sense, too, the rule is not reasonable. If your board somehow (method unknown) forces this new owner to plant a 2nd tree, I don't see how he wouldn't prevail if he took action against your Board. (I have no legal background.)

Owners--apparently many-- already have "intentionally chosen" to have just one tree when they did not replace their 2nd tree that was removed for whatever reason. So it's not solely this new owner who intentionally would break this rule.

To me, a reasonable approach might be for the Board to vote to bring the ARC guidelines up to date. To me, during that period, no owners would be forced to plant a 2nd tree. (The Board could appoint an ad hoc committee or assign the task to a qualified director or owner.)

Btw, were there two trees on the property when this new owner bought it?

Whatever the board does, do not act out of a "we'll show him who has the power around here" attitude even if he is perhaps obnoxious. Proceed based on what is best for your HOA as a whole.

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By EliG on 03/10/2023 1:13 PM
Well the intent of this post was not so much to debate the one tree vs two tree issue. The issue is what to do when people intentionally choose to disregard an architectural guideline because other people have done so and the HOA has not gone after them. We don't really want to grandfather them, but chasing them at this point isn't reasonable. Yet, going forward we don't want people to perpetuate the abuse. And I think some good information was posted here. Thanks again.

In that case, send a letter to everyone reminding them that when they bought their homes, they automatically became association members, meaning they are legally obligated to comply with community rules (bylaws, CCRs and board resolutions). The board recognizes that certain rules, particularly the architectural standards haven't been enforced as consistently as everyone should expect. That stops now.

The board also recognizes that materials, colors, tastes, etc have changed during the 30 years since ce this community was established. There should have been discussions about updating the guidelines in a way that allows everyone to make changes that will complement the overall look and design of the community. The board would like to commission a special advisory committee that will review tge guidelines and make recommendations to the board as to which guidelines should be added, dropped or amended. Unlike the CCRs, board resolutions are easier to change, and should be done with inputs from the community to increase the chances of compliance and consistency in enforcement.

Until then, the guidelines will be enforced as written. Please review and let us know if you have any questions or wish to be considered for the committee.

And so on. The board can decide what it wants the committee to do. I would have them conduct a homeowner poll and perhaps speak to some designers on current trends and determine what would work. It shouldn't be based on the tastes of a small group of people. Have fun!

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

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By SheliaH on 03/10/2023 4:30 PM

Posted By EliG on 03/10/2023 1:13 PM
Well the intent of this post was not so much to debate the one tree vs two tree issue. The issue is what to do when people intentionally choose to disregard an architectural guideline because other people have done so and the HOA has not gone after them. We don't really want to grandfather them, but chasing them at this point isn't reasonable. Yet, going forward we don't want people to perpetuate the abuse. And I think some good information was posted here. Thanks again.

In that case, send a letter to everyone reminding them that when they bought their homes, they automatically became association members, meaning they are legally obligated to comply with community rules (bylaws, CCRs and board resolutions). The board recognizes that certain rules, particularly the architectural standards haven't been enforced as consistently as everyone should expect. That stops now.

The board also recognizes that materials, colors, tastes, etc have changed during the 30 years since ce this community was established. There should have been discussions about updating the guidelines in a way that allows everyone to make changes that will complement the overall look and design of the community. The board would like to commission a special advisory committee that will review tge guidelines and make recommendations to the board as to which guidelines should be added, dropped or amended. Unlike the CCRs, board resolutions are easier to change, and should be done with inputs from the community to increase the chances of compliance and consistency in enforcement.

Until then, the guidelines will be enforced as written. Please review and let us know if you have any questions or wish to be considered for the committee.

And so on. The board can decide what it wants the committee to do. I would have them conduct a homeowner poll and perhaps speak to some designers on current trends and determine what would work. It shouldn't be based on the tastes of a small group of people. Have fun!

Good advice. I would also add that if the HOA is responsible for roads or sidewalks than whatever guidelines are created should address this. The last SFH HOA I lived in had a problem with certain types of trees lifting up sidewalks and buckling the pavement on the roads. They ended up with a list of what types of trees were allowed and how close they could be planted by the sidewalks and road.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

come on, would you like to be treated the way you are treating this home owner.

enforce it for everyone or enforce it on no one.

Many property owners think trees are just a nusicance and need leaves raked up, etc. but the truth is they increase property values and clean the air and hold carbon.

vis ta vie