Architectural Violations

As a member of our board of directors I am faced with a difficult problem right now and trying to decide the best way to suggest we handle it as we have a meeting later this month regarding the violation.

A new home owner (who is 'flipping' a property) installed a new window (not replaced an existing window actually knocked out a wall) without any approval.

This house is now on the market and the violation has just come to the attention of our Architectural Committee Chairman.

Several homes (including my own) requested permission for this modification when remodeling but have always been refused because it would ruin the "architectural integrity" of our community. There are some homes with this window addition which were done many years ago and are considered to be 'grandfathered in'.

Our Architectural Committee Chairman would like to sweep this under the carpet and let the flipper off with a verbal warning. I believe it will be difficult to enforce our CC&R's in the future if we ignore this violation.

The other problem is - the previous owner of this home was disciplined for carrying out modifications without approval and when they sold they were required to correct those violations. They were threatened that escrow would be held up until the violation was corrected.

We are a very small community and it is difficult to keep these matters confidential - there has been a lot of favoritism in the past (and right now for that matter). The Chairman of the AC is currently going after another homeowner for much smaller violations. Obviously, there is more background to the strained relationship between this home owner and the AC chairmen.

I'm afraid that if we as a board allow this type of subjective implementation of our CC&R's we could wind up in a lawsuit.

Of course, I think it would be awful to require the flipper to remove the window as it would be a big job at great expense.

Does anybody have a suggestion for a solution to this problem (i.e. could a hefty fine be imposed on the violator)?

Any suggestions?

Yes, that's one solution.

I tend to agree.

If this rule was board-created, I also question whether it was "reasonable" in the first place. "Reasonable" being one of the court tests for whether such a board-created rule is allowed.

This owner is a jerk for not getting permission and causing this ruckus. However I think the board should pick its fights, recognizing the totality of the situation including past history.

see if this helps
https://www.davis-stirling.com/HOME/H/HOA-Fine-Policy

and you HOA need to include certain things in the 'annual statement' one of which is the fine schedule (#8):

"Rules Enforcement Policy. A statement describing the association’s discipline policy, if any, including any schedule of penalties for violations of the governing documents pursuant to Section 5850."

https://www.davis-stirling.com/HOME/A/Annual-Budget-Policy-Disclosures

We have a schedule of fines.

Our architectural guidelines are at the whim of the chairman.

I have looked at the Davis-Stirling policy you quoted but it doesn't really fit this situation.

We do have a fine schedule and it is included in the annual policy but not sure anyone reads it. Our Annual Statement follows all the requirements set out in Davis-Stirling.

There is a 'Rules Enforcement' Policy which doesn't really fit this situation as this isn't a rules violation rather a violation of the CC&R's.

Architectural standards are developed and approved by the board of directors. Adopting or amending architectural standards is considered an operating rule change that requires 28-days notice to the membership before it can be adopted.

The 28 day notice shall include a description of the purpose and effect of the proposed rule change

https://www.davis-stirling.com/HOME/H/HOA-Architectural-Guidelines#:~:text=Architectural%20standards%20are%20developed%20and,before%20it%20can%20be%20adopted.

Perhaps you didn’t read the entire thread.

It's important to remember that the issue is the lack of approval for the window and not the window itself. You have to address that issue. It sounds like one cure you are considering is changing the rules to allow these windows in the community while saying "there was no violation because we were going to make that change anyway." While it makes this issue fall of your radar, keep in mind that it sets a bad precedent by demonstrating that rules can be broken without consequence.

In this case, your ARC needs to do its job and assign whatever remedy is appropriate in your documents. Then, the community needs to change its standards to allow those windows for everyone else. This way, the next time you have a similar situation, you don't have to worry about whether the change looks good or not or consider getting accused of playing favorites. It's just a violation. Handle it accordingly.

In our community, the homeowner who did the modification without approval would, at a minimum, face a fine for not sending in an architectural approval request. The issue you face, as you know, is that even if you fine for the missing request but let them keep the window, then you really are not going to be able to stop the next one. They will consider the fine a cost of doing business.

Our community would send the homeowner a letter of the violation and ask for the application. ACC would deny the application and refer to the board. Board would hold a hearing about the violation and propose a fine. Fining committee would either uphold the fine or let it go (fining committee is independent of the board). Fine (if upheld) would be applied to the homeowner's account. If homeowner still didn't comply, attorney would send cease and desist and ask for the modification to be removed. Lawsuit would probably follow. We have a fine schedule for a max of $5000.

If the modification changes the structural integrity of the building then you have to fight it. If it doesn't and it's just a cosmetic change but the historical character of the building is compromised, then you may have to get an expert opinion to convince your ACC and board that the change is damaging. Is anyone willing to go that far? Your job becomes much harder if your community doesn't have written guidelines and they are just at the "whim" of the ACC.

Another poster is correct - in most cases the ACC is a separate committee or board than the board of directors, but they serve at the pleasure of the board of directors. If they don't do their job then the board needs to replace them.