Another Can of Worms from My Association - Exterior Change denials

Started by TimB4 • 9 replies • 267 views

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TimB4 (Tennessee)
Posts: 21,059

Posted:

OK, everyone knows that my Associations governing documents are very poorly written.

I started an earlier thread that the Association my not have the right to approve/disapprove changes.

Per our Covenants:

If the Developer denies any plans or any portion thereof, lot owner may override the Developers denial by obtaining written approval of the plans by all lot owners in a three hundred (300) foot radius.

For the sake of this thread, we need to look at the issue with the expectation that the Association has inherited or were assigned developer rights to approve/disapprove building plans and modifications (aka exterior changes).

Hence, per my reading, if the Association denies a request, the denial can be overridden (effectively be approved) by the lot owner obtaining signatures from the adjoining lot owners that are within 300feet. Hence, providing a waiver to the covenants.

Would this be your interpretation as well?

CathyA3 (Ohio)
Posts: 6,299

Posted:

It sounds like it to me.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TimB4 on 10/13/2023 12:17 PM

Per our Covenants:

If the Developer denies any plans or any portion thereof, lot owner may override the Developers denial by obtaining written approval of the plans by all lot owners in a three hundred (300) foot radius.

For the sake of this thread, we need to look at the issue with the expectation that the Association has inherited or were assigned developer rights to approve/disapprove building plans and modifications (aka exterior changes).

Okay. For the purposes of this thread, I will operate on the assumption that the HOA is the "assigns" of the Developer.

Quote:

Posted By TimB4 on 10/13/2023 12:17 PM
Hence, per my reading, if the Association denies a request, the denial can be overridden (effectively be approved) by the lot owner obtaining signatures from the adjoining lot owners that are within 300 feet.

True.

Quote:

Posted By TimB4 on 10/13/2023 12:17 PM
Hence, providing a waiver to the covenants.

I disagree. Suppose Owner McDuff receives a denial from the HOA but then gets her neighbors in a 300 foot radius to approve the plan. Owner Andolini says, "Hey, you violated the covenant on garages. Either fix it so you are in compliance, or I will sue."

Does Andolini's claim have merit? Could he prevail in a lawsuit? I say yes, quite possibly. It's the same as the HOA approving an improvement that is actually a covenant violation, and then Owner Andolini sues both the violator and the HOA for the covenants violation.

BillD16 (Texas)
Posts: 971

Posted:

Quote:

Posted By TimB4 on 10/13/2023 12:17 PM
OK, everyone knows that my Associations governing documents are very poorly written.

I started an earlier thread that the Association my not have the right to approve/disapprove changes.

Per our Covenants:

If the Developer denies any plans or any portion thereof, lot owner may override the Developers denial by obtaining written approval of the plans by all lot owners in a three hundred (300) foot radius.

For the sake of this thread, we need to look at the issue with the expectation that the Association has inherited or were assigned developer rights to approve/disapprove building plans and modifications (aka exterior changes).

Hence, per my reading, if the Association denies a request, the denial can be overridden (effectively be approved) by the lot owner obtaining signatures from the adjoining lot owners that are within 300feet. Hence, providing a waiver to the covenants.

Would this be your interpretation as well?

I’m wary ever since you asked that question that brought up “brigadoonians” and “anti-brigadoonians”

The one point that sticks out to me is the word “Developer”. Are you still under “declarant control” (I think it’s called)? Is “Developer” defined anywhere in the documents?

Is there anything about an Architectural Control Committee in there?

Bill

HOA Board ex-President
Austin, Texas USA

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

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By BillD16 on 10/13/2023 2:34 PM

The one point that sticks out to me is the word “Developer”. Are you still under “declarant control” (I think it’s called)? Is “Developer” defined anywhere in the documents?

Is there anything about an Architectural Control Committee in there?

Bill

No to both.

No developer (gone for over 10 years)

Zero mention of an architectural control committee in the covenants or bylaws.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I think that ElleN brings up a good point since individual owners can enforce the covenants. The downside of this is that the individual owner has to be able to afford the lawsuit. In a community where assessments are really low, it's very possible that individuals actually do have deeper pockets than the association does and can afford to do this.

My impression of this community is that the CC&Rs and bylaws put much of the authority normally held by an HOA into the hands of the owners. The upside is that the board won't have the tools to be heavy-handed. The downside is that they also don't have the tools that allow for efficient and consistent operations.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I'll also mention that architectural squabbles that normally end up with the owners fighting with the HOA in this case will end up with neighbors fighting with each other. Is this better?

BillD16 (Texas)
Posts: 971

Posted:

Quote:

Posted By CathyA3 on 10/14/2023 5:23 AM
I'll also mention that architectural squabbles that normally end up with the owners fighting with the HOA in this case will end up with neighbors fighting with each other. Is this better?

Cathy reminded me of something that I'm not sure is useful, but - given that your governing documents seem very weak on this point, and I'm guessing there's possibly an option to modify them? What kind of rules and process would be best for your neighborhood? I mean, yeah, I take it for granted that you want to do what's best - but what are the possible options? Could you adopt something new and maybe even slightly radical that might work better than the "standard"? Sooo easy for me to suggest; sooo difficult to do, I know.

Bill

HOA Board ex-President
Austin, Texas USA

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

KerryL1 (California)
Posts: 14,550

Posted:

BillD inspires: Do your CC&Rs or possibly AOI or Bylaws) give the Board the authority to make rules? What is the language is used. If so, your Board can create ARB rules.

Do your CC&Rs or Bylaws give your Board the authority to appoint committees. If so, create a committee to make a charter for an ARB. If you can, see if similar HOAs will share their approach with you.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Hey, Tim: you've got enough to worry about, but since so much authority in your association remains in the hands of the owners, you might want to take a look at the thread below about the Corporate Transparency Act and its reporting requirements:

https://www.hoatalk.com/Forum/tabid/55/forumid/1/tpage/1/view/topic/postid/358266/Default.aspx#358286

I'm not a lawyer, but it's possible that you may need to report the personal info of all of the membership. On the other hand, that may help convince folks to amend those CC&Rs!

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