Garage conversion variance?

In my opinion, the rules are more restrictive then the covenants, as the covenants do not prohibit garage conversions.

Are your streets public or private, as this could have bearing on parking in the street?

The main thing you should consider is that if you grant a variance for one, you will need to grant a variance for all (or most all).

If the garage door is there, then there is no reverting back as, it is a garage.
As the door can be opened and, unless there is a wall in front of the door, a vehicle could be pulled into the garage.

In addition to the flooring, door and window what else was done (walls, heating/Air Conditioning, etc.)?

Why do you mention this? Do understand that this is not a lawful defense to her situation and has no bearing on the situation? The courts say that the covenants were in fact noticed to the owner by virtue of state disclosure requirements and the covenants being recorded at the county clerk. The courts say that the covenants are "contractual terms" to which all agree when they buy into the HOA.

Please quote verbatim exactly what your covenants say about modifications in general and modification of garages in particular.

For now, be aware that board-created rules cannot conflict with covenants.

City permit doesn’t matter if your documents require other procedures.

Ellen,

Our CC&Rs go on for over three pages regarding modifications in general. Here are the first two paragraphs:

"General. No structure or thing shall be placed, erected, or installed upon any Unit within
the Properties and no improvements or other work (including staking, clearing, excavation, grading and
other site work, exterior alterations of existing improvements, or planting or removal of landscaping) shall
take place within the Properties, except in compliance with this Article, the Residential Design Guidelines
adopted pursuant to this Declaration.

"Approval of the PIC shall not be required to repaint the exterior of a structure, if in accordance
with the originally approved color scheme, or to rebuild in accordance with originally approved plans and
specifications. Any Owner may remodel, paint, or redecorate the interior of his or her Unit without
approval, provided that the work performed complies with all laws applicable to the Local Jurisdiction.
However, modifications to the interior of screened porches, patios, and similar portions of a Unit visible
from outside the structure and modifications to enclose garages as living space shall be subject to
approval."

Now, our governing documents were written in a very unusual way (per our attorney). As an exhibit to the CC&Rs, and thus recorded with the CC&Rs, but not exactly part of the CC&Rs, we have a document called "Initial Use Restrictions" which are kind of like what many HOAs might call rules and regulations. This document includes:

"Conversion of Carports or Garages. Conversion of any carport, garage, attic, or
other unfinished space, other than a basement, to finished space for use as an apartment or other
integral part of the living area on any Unit is prohibited."

And finally, the CC&Rs on variances:

"Variances. The Reviewer may authorize variances from compliance with any of its
guidelines and procedures when circumstances such as topography, natural obstructions, hardship, or
aesthetic or environmental considerations require, but only in accordance with the laws of the Local
Jurisdiction. Such variances may only be granted, however, when unique circumstances dictate and no
variance shall (a) be effective unless in writing; (b) be contrary to this Declaration; or (c) estop the
Reviewer from denying a variance in other circumstances. For purposes of this Section, the inability to
obtain approval of any governmental agency, the issuance of any permit, or the terms of any financing
shall not be considered a hardship warranting a variance."

Thus, if "Initial Use Restrictions" are "guidelines and procedures" we can grant a variance. If "Initial Use Restrictions" are part of the Declaration, then garage conversions are prohibited and a variance can't be granted.

If a variance can be granted, should it be, and what terms should be considered? If it can't, is it really worth taking the owner to court over this or is it more reasonable to ignore until there is an actual problem, as the board has authority to do if they feel it's in the best interests of the association.

Thanks.

Since the conversion has already taken place, if a variance isn't granted, you will likely need to enforce via legal ways. At the least, attorney expenses. At the most a full court battle.

I’m not sure I understand the difference between the “developer rules” and the CC&Rs.

Is your neighborhood still under “declarant control”? I lack the experience of others here, but I thought that when the developer moved on, the “developer rules” expired? (You should definitely not just accept my words as truth).

Also speaking only for myself: it seems like there is minimal change to the exterior, she actually got all of the required permits & etc. Perhaps in allowing this to go through, y’all could lay down some strict rules - this seems like an ACC thing - on the requirements for this if other people come along wanting to do a garage conversion later? Personally, I don’t see anything wrong with someone doing this.

Bill

Wendy,

Did the board know that the neighbor converted the garage despite the denial? How did they respond?

Margaret

You say:

Our CC&Rs say that (almost) all improvements require approval before work begins and specifically mentions that "...modifications to enclose garages as living space shall be subject to approval." Our rules (put in place by the developer 10 years ago) specifically say converting garages to living space is prohibited.

CC&R's outweigh rules so garage conversion are not prohibited but they are subject to approval. We allow garage conversions as long as the exterior garage door remains in place meaning it looks like a garage from the outside.

You said:

"the board asked the homeowner to stop work on the project and submit the proper forms for consideration. The homeowner insisted she was just redoing the floor of the living room and, when challenged, grudgingly admitted that she had also added a window and door. She submitted an alteration request that just said, "add door and window and redo floor." It was denied, needing more information.

Since then, the homeowner has been coming to my door, calling, and texting--pleading her case. I tell her I can't speak for the board and have invited her to our next meeting. I have learned that the homeowner wanted to expand her day care into the garage and state regulations required the door and window. She said she had no idea she needed HOA permission. I have also learned that permits for garage conversion were granted, the project passed final inspection, and cost about $40,000. The garage door is still intact, so it still looks like a garage."

And you want to give this person a variance because "she's now willing to cooperate?" Well, if I had 40 stacks already invested in this project. I might say the same thing, but I still don't feel sorry for her. Most of us know you can't assume anything when it comes to HOAs - I don't know how this lady has been living in this community, but you'd think she would have asked someone before going headfirst.

But hey, if you want to grant her the variance anyway, have at it.

"Rules" are normally created by a HOA board, and may be amended by a board after meeting notice requirements. In some states, owners can vote to throw out a board-created rule.

Covenants may only be amended by a vote of a specified super-majority of owners.

You reported that the "Initial Use Restrictions" may only be changed by a vote of the owners. This suggests the Initial Use Restrictions are in fact not mere rules.

Nationwide the CC&RS give the Board the authority to create reasonable rules, for certain issues, that do not exceed what is already in the covenants.

All who are responding here know this distinction well. This is complicated by the wording of the "Initial Use Restrictions."

Legally:
"The Association" refers to the corporation. Some of the powers of "the association" belong strictly to owners. Like amending the CC&Rs. Amending the CC&Rs is a power reserved exclusively to the owners. Other powers belong strictly to the board. Like setting the budget; creating rules for the pool or clubhouse; hiring a manager; making sure the landscaping of common areas is maintained.

that's gonna really tank home values IMHO.

A meta-comment: I know I speak for myself and I'm pretty sure most of the regulars would agree: you're welcome back here any time!

Bill

My take: What your CCR's call "Initial Use Restrictions" may be modified by the Board, with no owner's vote required. Hence I call them Board-controlled rules.

I explained above why the Board-controlled rule that prohibits conversions is in fact a conflict with the CCRs. JohnC46's post also explained this (and more succinctly). But I understand if my explanation did not pass your logic test. Plus communicating post by post is hard.

I will try to find the case law where an appeals court ruled that, where a covenant says approval is required to do xyz, a board may not then create a rule flat-out prohibiting doing xyz. The case law is not from Washington, but I think the reasoning is easy to follow.

Ellen,

I wonder if you might be referring to protected alterations.

Our CC&Rs go on for three pages regarding rules for amending Use Restrictions. There are several "No Use Restriction may..." passages such as, "No Use Restrictions shall regulate the content of political signs; however, rules may regulate the time, place, and manner of posting such signs (including design criteria) and the Local Jurisdiction's Ordinances
shall apply." So, while we could--we don't--have a Use Restriction that says, "Political signs are limited to one sign per candidate or issue and must be removed within 7 days of the election" we could not have a Use Restriction that says, "Political signs are prohibited."

If garage conversions were mentioned as similarly protected in this section of our CC&Rs, I could better accept your argument, but they are not. They are also not protected by state or local law as, for example, firewise and drought resistant landscaping, solar panels, US flags, etc. are.

-- Margaret, when interpreting contractual terms like covenants, from my reading the courts first look to see whether the "plain and ordinary meaning" of the covenant's words are clear. If the plain and ordinary meaning is not clear, then the courts would read the entire Declaration (a.k.a. CC&Rs) to see if the intent becomes clear based on a reading of the Declaration in its totality. If this fails, then the courts would defer to the "free use of property" principle: If the covenants are either silent about xyz, or do not prohibit xyz, then xyz is permitted under the covenants.

-- The covenant states: '[M]odifications [to do xyz] shall be subject to approval.' Courts will break down grammar as needed. I am once again trying to think like an appeals court judge, with you and others also judges on the same appeals court. Grammatically speaking:

"Modifications" is the sentence's subject.

 "to do xyz" is an infinitive phrase. Here the infinitive phrase is also an adjective.

"shall be subject to approval" contains the verb and is the sentence's predicate. 

If the authors of the covenant wanted xyz itself to be subject to approval, then I think they would have written: "xyz shall be subject to approval." But the authors did not. You might then argue that "subject to approval" means the HOA has the right to dis-approve any and all proposed modifications. This would be an effective ban on doing xyz. But then, why does the covenant speak of "modifications" at all?

-- In today's post, you quoted a Declaration section that ostensibly limits how the Declaration may be amended. But first, this section itself may be amended. Owners could even vote to eliminate it in its entirety. Second, I maintain that garage conversions are already protected by virtue of the "plain and ordinary meaning" of the covenant I parsed above.

-- Little aside: As I bet you are aware, Washington's pre-2018 (and so on) HOA statute RCW 64.38 has a section saying a HOA's governing documents may not prohibit political signs before a primary or general election. Perhaps your HOA's Declaration had this statute section in mind. I wonder if much of this Declaration section, ostensibly imposing limits on amendments, is reflecting statutes.

-- As for the "initial use restrictions" (that are subject to change when the board wants to change them) and how they prohibit garage conversions: I am writing this off to the Declarant exercising its rights. I continue to maintain that the Declaration is higher than board-controlled rules in the hierarchy of governing documents, and this board-controlled rule is no longer enforceable (or would be ruled no longer enforceable in a court).

-- All this is only my opinion. I am explaining how I would vote if I were on this board. Obviously I am not there, boots on the ground, dealing with a tough situation.

-- About the parking situation: Parking has been the start of wars at many HOAs and condo associations. I do not take parking lightly. But I also do not take the plain and ordinary meaning of covenants lightly. More might need to be discussed on this point.

-- Quick nod to SheliaH's point: I agree it is way not cool that this owner did not first apply before performing the modifications. My posts above aimed to get to the bottom line of how I would vote. At some point, arguably either a good talking-to, or taking the owner behind the woodshed for twenty licks with a hickory switch, is in order, if the board has the energy. This stuff happens.

-- With reference to BillH16's post: I am thinking the line from "The Paper Chase" that is most relevant here is law student James Hart's retort to contracts professor Kingsfield (when Kingsfield is needling him): "You... are a son of a b-tch!"

Update: our attorney confirmed that garage conversions are prohibited by our documents. We have several options for getting around that prohibition if we want to, but we don't have to.

Meanwhile, I have blocked the phone number of this owner and her cousin, and I will not be speaking to either of them in person. She tried to talk to me by having a neighbor call me as well.

They now say that I gave them the wrong date for the board meeting at which they were going to seek clarification, causing them to miss it. They say that I "misunderstood" and they never claimed they had converted the garage for use as day care space. And they say that by definition they have not converted their garage to living space, because if they had wanted to do that, they would have had to get permits from the city, and since they never got permits, they clearly did not convert the garage.

Except, we already know that they did get the permits for "Project Description: Garage Conversion". I know I did not give them the wrong meeting date. There is no way I could have misunderstood, "I just wanted some extra play space for the children I look after and the state has a lot of rules, which is why I had to add the door and window".

They have still not filed a formal modification request, except for the original one which was denied for lack of detail as it literally only said, "Add door and window and redo floor."

Still at a loss as to how this should be resolved. The work is already done, though we don't know the full scope. No one really wants a court battle to make them undo it, but we also don't want to open the door to everyone doing the same thing as that would lead to a massive parking problem.

I've recused myself from the review process--so it's not my problem anymore, but I still wonder what the right thing is.