SM2 (Arizona)
Posts: 5
Posts: 5
Posted:
In AZ, can homeowners in an HOA sue other homeowners who violate the HOA architectural guidelines for structure height and obstruct existing views?
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Blocked view lawsuits
Started by SM2 • 27 replies • 2208 views
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RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
SM2,
The answer is yes.
The answer is yes.
KirkW1 (Texas)
Posts: 1,665
Posts: 1,665
Posted:
In every state anyone with something to lose can sue to enforce covenants. You don't even have to be subject to the covenants. In one particular case an HOA sued to enforce a covenant regarding property across from them. They won the suit even though they were not subjects of said covenant. The court said that they stood to lose something and thus had standing.
Should you decide to take legal action, I would recommend that you not simply look for a lawyer who tells you what you want to hear.
Should you decide to take legal action, I would recommend that you not simply look for a lawyer who tells you what you want to hear.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Quote:
Posted By SM2 on 12/19/2008 4:32 PM
In AZ, can homeowners in an HOA sue other homeowners who violate the HOA architectural guidelines for structure height and obstruct existing views?
In AZ, can homeowners in an HOA sue other homeowners who violate the HOA architectural guidelines for structure height and obstruct existing views?
SM,
As far as I know there are no laws against suing someone. The important point to consider is, do you have a case? Are views guaranteed in the CCRs? Has the h/o violated the CCRs or was this h/o given permission to build the structure by the Architectural Committee? A little more info on your problem would be appreciated.
SM2 (Arizona)
Posts: 5
Posts: 5
Posted:
A little more background: The h/o has refused to submit plans to the Architectural Review Committee as required by the CC&R's. . The CC&R design guidelines limit buildings to a single story to preserve the views. Construction is underway and it appears to be a two story dwelling at this point.
EllenS1 (Florida)
Posts: 1,148
Posts: 1,148
Posted:
SM,
Anyone can sue anyone for any reason...whether you can get an attorney to take the case or whether you will prevail are the important things to consider.
Anyone can sue anyone for any reason...whether you can get an attorney to take the case or whether you will prevail are the important things to consider.
SusanW1 (Michigan)
Posts: 5,202
Posts: 5,202
Posted:
SNM - what do you mean it "appears" to be a 2 story? Be sure you have the facts.
If it is proven to be a 2 story, the HOA can get a stop work order by a judge. The plans should be on file SOMEWHERE. SOMEONE had to have approved them!
If it is proven to be a 2 story, the HOA can get a stop work order by a judge. The plans should be on file SOMEWHERE. SOMEONE had to have approved them!
KirkW1 (Texas)
Posts: 1,665
Posts: 1,665
Posted:
If the person has not submitted their plans to the ARC, then the Board should initiate a suit and seek an injunction to stop all work. That is the short of it. You can also bring this action, though if the association is not willing to stand up for itself, then they may just roll over and approve whatever is submitted anyway. Then you have a very hard road ahead.
SM2 (Arizona)
Posts: 5
Posts: 5
Posted:
The plans (approved by the city) are required to be on site. They clearly show a two story structure. The foundation is poured and framing will likely start soon. I have the "before" view photos and will wait for the framing to take the "after" view photos.
SusanW1 (Michigan)
Posts: 5,202
Posts: 5,202
Posted:
Why isn't your HOA talking to the City? or vice versa?
Aren't all buidling plans approved by your CCR Committee BEFORE it goes to the City for approval. Was a step missing?
What is the PROCEDURE for building in your neighborhood?
Aren't all buidling plans approved by your CCR Committee BEFORE it goes to the City for approval. Was a step missing?
What is the PROCEDURE for building in your neighborhood?
KevinK7 (Florida)
Posts: 1,343
Posts: 1,343
Posted:
I believe in my covenants, it states that a homeowner or entity organized by the homeowners have the right to enforce covenants.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Quote:
Posted By SM2 on 12/20/2008 2:49 PM
A little more background: The h/o has refused to submit plans to the Architectural Review Committee as required by the CC&R's. . The CC&R design guidelines limit buildings to a single story to preserve the views. Construction is underway and it appears to be a two story dwelling at this point.
A little more background: The h/o has refused to submit plans to the Architectural Review Committee as required by the CC&R's. . The CC&R design guidelines limit buildings to a single story to preserve the views. Construction is underway and it appears to be a two story dwelling at this point.
SM,
So why hasn't the A/C issued a "stop work" order? This is a matter for the A/C and board to deal with.
MicheleD (Kentucky)
Posts: 4,491
Posts: 4,491
Posted:
I agree with Mary.
Besides, getting city "approval" is not even close to getting HOA or ARC approval.
Our residents can get city "approvals" for all kinds of things till the cows come home, but if it is an item that is required to have HOA/ARC approval, we can, and DO, issue stop-work orders until they obtain it.
Getting the city "approval" (assuming that means all permits, etc, too) makes it easier to get the ARC approval, but if it is still something that runs contrary to our restrictions we can (and DO) deny approval and can make it stick.
City/zoning approval vs HOA/ARC approval: apples and oranges.
Besides, getting city "approval" is not even close to getting HOA or ARC approval.
Our residents can get city "approvals" for all kinds of things till the cows come home, but if it is an item that is required to have HOA/ARC approval, we can, and DO, issue stop-work orders until they obtain it.
Getting the city "approval" (assuming that means all permits, etc, too) makes it easier to get the ARC approval, but if it is still something that runs contrary to our restrictions we can (and DO) deny approval and can make it stick.
City/zoning approval vs HOA/ARC approval: apples and oranges.
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
Kevin.
This is an interesting point Kevin.
I know that our covenants makes direct reference to the responsibility of each owner to be responsive to the CC&R's.
It is open to debate, I suppose, whether this includes enforcement but I read it to say, if an owner is aware of any situation or event that effects adversly the whole (associationa) they have a responsibility to attempt to rectify the offense. Of course that goes beyond just saying they have a "right."
Maybe we should begin all our meetings with some kind of a preamble explaining responsibilities of the owners. I, like most of us, have wittnessed differing responses from members of the Board when they are informed of violations of our covenants.
This is an interesting point Kevin.
I know that our covenants makes direct reference to the responsibility of each owner to be responsive to the CC&R's.
It is open to debate, I suppose, whether this includes enforcement but I read it to say, if an owner is aware of any situation or event that effects adversly the whole (associationa) they have a responsibility to attempt to rectify the offense. Of course that goes beyond just saying they have a "right."
Maybe we should begin all our meetings with some kind of a preamble explaining responsibilities of the owners. I, like most of us, have wittnessed differing responses from members of the Board when they are informed of violations of our covenants.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Kevin & Robert,
While it's true that in most instances the members have the right to enforce the covenants, oftentimes that is only AFTER the board has failed to do so for a period of time. Check your covenants b/4 you do anything!!!
While it's true that in most instances the members have the right to enforce the covenants, oftentimes that is only AFTER the board has failed to do so for a period of time. Check your covenants b/4 you do anything!!!
SM2 (Arizona)
Posts: 5
Posts: 5
Posted:
Unlike some cities, here they do not require HOA/ARC plan approval as a condition of issuing a building permit. I'm waiting for the HOA to take strong action. If they don't, I'll explore personal action against the non-conforming party.
KirkW1 (Texas)
Posts: 1,665
Posts: 1,665
Posted:
In many (maybe all) locations a city can not legally withhold approval for plans because an an HOA. That would amount to the city enforcing a private contract. While it would be nice for the HOA, the implications are such that I would never favor that. It just is not the city's place to enforce private contracts. Having said that, I see nothing wrong with a city notifying an HOA that plans were submitted. Many cities in my area will notify the HOAs if the HOAs choose to work with them. For instance we routinely notify the city if a resident fails to get permits. The city notifies us if they think we might know of an application.
As for having to wait for the BOD to enforce the covenants, I totally disagree. I have never heard of a covenant that mentions that removes the right of a resident to enforce a covenant. It is more a matter of practicality.
I also believe that waiting until the house is built is folly. It would be much better to get this train stopped before the framing goes up. And if you think you will file a suit then you should be in contact with your lawyer.
As for having to wait for the BOD to enforce the covenants, I totally disagree. I have never heard of a covenant that mentions that removes the right of a resident to enforce a covenant. It is more a matter of practicality.
I also believe that waiting until the house is built is folly. It would be much better to get this train stopped before the framing goes up. And if you think you will file a suit then you should be in contact with your lawyer.
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
Back again to the HOA can make the State restrictions more astringent inside the HOA, they can not make them less.
Here it is plainly a BOD responsibility and through the ARC if there is one. If not the Board should have already had a letter into the City/county/state questioning the construction. The should have demanded a immediate reply and if they didn't get it either file in small claims court of hire a lawyer. I believe if the Board don't act, they are opening some doors that could lead all of them to the court house. If an individual has to file a suit, the Board is again in a bod spot, particularly if there is any hint that this structure mitigates property values.
Here it is plainly a BOD responsibility and through the ARC if there is one. If not the Board should have already had a letter into the City/county/state questioning the construction. The should have demanded a immediate reply and if they didn't get it either file in small claims court of hire a lawyer. I believe if the Board don't act, they are opening some doors that could lead all of them to the court house. If an individual has to file a suit, the Board is again in a bod spot, particularly if there is any hint that this structure mitigates property values.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Kirk,
You wrote: "As for having to wait for the BOD to enforce the covenants, I totally disagree. I have never heard of a covenant that mentions that removes the right of a resident to enforce a covenant. It is more a matter of practicality."
Note this section from my CCRs:
"Enforcement: The assn as agent and representative of the owners shall have the exclusive right, but not the obligation, to enforce the provisions of this declaration. However, if the assn shall fail or refuse to enforce a mandatory provision of this declaration for an unreasonable period of time (which shall exceed at least 30 days) after written request by at least 10 owners to do so, then the requesting owners may enforce them on behalf of the assn by any appropriate action, whether at law or in equity."
It's wise to never say never!
You wrote: "As for having to wait for the BOD to enforce the covenants, I totally disagree. I have never heard of a covenant that mentions that removes the right of a resident to enforce a covenant. It is more a matter of practicality."
Note this section from my CCRs:
"Enforcement: The assn as agent and representative of the owners shall have the exclusive right, but not the obligation, to enforce the provisions of this declaration. However, if the assn shall fail or refuse to enforce a mandatory provision of this declaration for an unreasonable period of time (which shall exceed at least 30 days) after written request by at least 10 owners to do so, then the requesting owners may enforce them on behalf of the assn by any appropriate action, whether at law or in equity."
It's wise to never say never!
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Quote:
Posted By RobertR1 on 12/25/2008 12:10 AM
Back again to the HOA can make the State restrictions more astringent inside the HOA, they can not make them less.
Here it is plainly a BOD responsibility and through the ARC if there is one. If not the Board should have already had a letter into the City/county/state questioning the construction. The should have demanded a immediate reply and if they didn't get it either file in small claims court of hire a lawyer. I believe if the Board don't act, they are opening some doors that could lead all of them to the court house. If an individual has to file a suit, the Board is again in a bod spot, particularly if there is any hint that this structure mitigates property values.
Back again to the HOA can make the State restrictions more astringent inside the HOA, they can not make them less.
Here it is plainly a BOD responsibility and through the ARC if there is one. If not the Board should have already had a letter into the City/county/state questioning the construction. The should have demanded a immediate reply and if they didn't get it either file in small claims court of hire a lawyer. I believe if the Board don't act, they are opening some doors that could lead all of them to the court house. If an individual has to file a suit, the Board is again in a bod spot, particularly if there is any hint that this structure mitigates property values.
Robert,
Correction. There is no cause for the board to write to the "city/county/state" questioning the construction. The city did their job correctly by issuing a building permit they have no say over whether or not the member of the assn has a right to build the structure. The board should have written a letter to the member who is in violation or better yet issued a stop-work order.
Having not read the CCRs, I really don't know what they say regarding the board's obligation or duty, or whatever, to enforce the CCRs. However, b/4 embarking on litigation against the offending member I certainly would thoroughly research my right to enforce in place of the board.
GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
Quote:
Posted By SM2 on 12/22/2008 11:02 AM
Unlike some cities, here they do not require HOA/ARC plan approval as a condition of issuing a building permit. I'm waiting for the HOA to take strong action. If they don't, I'll explore personal action against the non-conforming party.
Unlike some cities, here they do not require HOA/ARC plan approval as a condition of issuing a building permit. I'm waiting for the HOA to take strong action. If they don't, I'll explore personal action against the non-conforming party.
SM, as others have stated: "Don't wait for the HOA to notice this and take action." Notify them now and put them on notice that you expect them to enforce the Covenants. If it gets built don't expect to file a complaint and have it torn down without expensive litigation. The home builder seems to be going under the premise of, "It's better to ask forgiveness after, rather than permission first." If it gets built, the more likely scenario is, the owners says, "Oops I didn't realize the HOA needed to approve it, I'm sorry"; in which case the BOD will more than likely say "Don't do it again." or fine them. In either case the house is built and the view is gone.
Studies show that 5 out of 4 people have problems with fractions
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
Mary and Gloen,
You both have wonderful minds and use them effectively, no doubt about that.
I just wonder in this case if all three of us aren't assuming some stuff that we don't have a good handle on. I don't see any problems with your conclusion based on the facts as you see them, and this includes me also. But we aren't there and as far as I know really don't have a good picture of the geographics of the the area. In addition we don't know if this entity that issued the permit is ten miles away or down the street. There could be circumstances in the game we don't know about. That is why I think the Board should establish contact with the permit giver and work out who does what, when. Avoid trouble in the future. Is it right that the owner of the lot is responsible? Seems so to me. But if this owner is not aware of the big picture, should we say he is at fault? Lets imagine he is misguided. A letter from the Board with an attachment from the ones issuing the permit would help. And suppose the owner says I am going to do it because I have a permit and the permit giver says the permit is proper. Best to get all that out of the way, it seems to me.
You both have wonderful minds and use them effectively, no doubt about that.
I just wonder in this case if all three of us aren't assuming some stuff that we don't have a good handle on. I don't see any problems with your conclusion based on the facts as you see them, and this includes me also. But we aren't there and as far as I know really don't have a good picture of the geographics of the the area. In addition we don't know if this entity that issued the permit is ten miles away or down the street. There could be circumstances in the game we don't know about. That is why I think the Board should establish contact with the permit giver and work out who does what, when. Avoid trouble in the future. Is it right that the owner of the lot is responsible? Seems so to me. But if this owner is not aware of the big picture, should we say he is at fault? Lets imagine he is misguided. A letter from the Board with an attachment from the ones issuing the permit would help. And suppose the owner says I am going to do it because I have a permit and the permit giver says the permit is proper. Best to get all that out of the way, it seems to me.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Robert,
What you say does make sense. But, only if the permit is a determining factor in the assn approving the plans. IMO, although a permit may even be required by the assn, the fact that one has been obtained does not necessarily mean the plan will be approved. In other words, the permit is not a guarantee. The city may not see a problem with the building plans, but they are not the approving entity, the HOA is. If it were the reverse there wouldn't be a need for architectural guidelines.
What you say does make sense. But, only if the permit is a determining factor in the assn approving the plans. IMO, although a permit may even be required by the assn, the fact that one has been obtained does not necessarily mean the plan will be approved. In other words, the permit is not a guarantee. The city may not see a problem with the building plans, but they are not the approving entity, the HOA is. If it were the reverse there wouldn't be a need for architectural guidelines.
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
I understood the City/town office issued a building permit. As usual I can be wrong but I thought a building permit was a permit to allow a particular building to be erected on a particular lot. Could be it was issued in error, who knows, unless they take the trouble to find out. Better for ALL to find out early rather than later. I would not want to be on the Board with the knowledge this particular building is in violation and if the thing gets built and they have to tear it down, then they find out the Board knew all along it was in violation. Bad spot to be.
SM2 (Arizona)
Posts: 5
Posts: 5
Posted:
The city has issued a building permit and doesn't know/care about any HOA design review requirements as long as the plans meet city specs. The h/o has refused to submit the plans for HOA review and is moving forward. The HOA is pursuing legal channels.
RobertR1 (South Carolina)
Posts: 5,164
Posts: 5,164
Posted:
To all,
Let's say SM2 is current as described above. Understanding in this case, time line could play a part in the sequence of events, is there anything that could have been done by the owner, or the BOD or both, to have kept this out of the lawyers hands..
Let's say SM2 is current as described above. Understanding in this case, time line could play a part in the sequence of events, is there anything that could have been done by the owner, or the BOD or both, to have kept this out of the lawyers hands..
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Quote:
Posted By RobertR1 on 12/27/2008 1:23 PM
To all,
Let's say SM2 is current as described above. Understanding in this case, time line could play a part in the sequence of events, is there anything that could have been done by the owner, or the BOD or both, to have kept this out of the lawyers hands..
To all,
Let's say SM2 is current as described above. Understanding in this case, time line could play a part in the sequence of events, is there anything that could have been done by the owner, or the BOD or both, to have kept this out of the lawyers hands..
Robert,
In answer to your question: "YES! The h/o could have gone through the proper channels and obtained permission from the HOA to go forward with the building." The h/o is being very uncooperative, to say the least. As stated earlier, the fact that they have obtained a building permit from the city makes no difference. The city would not allow building to take place w/o a building permit and no contractor would (or should) start construction w/o one; however, the fact that the h/o obtained one does not mean the HOA must approve the construction.
MicheleD (Kentucky)
Posts: 4,491
Posts: 4,491
Posted:
Quote:
Posted By MaryA1 on 12/27/2008 2:54 PM
however, the fact that the h/o obtained one does not mean the HOA must approve the construction.
however, the fact that the h/o obtained one does not mean the HOA must approve the construction.
Bingo.
Our locality allows anyone to put up a fence 6 feet or less, regardless of materials used. They obtain a city "permit" for it.
However, our (the HOA) requirements for fencing are much stricter.
We have had residents attempt to construct a fence hoping that all they needed to do was to get city approval (via their permit) and we'd let it go, since it was "approved" (permitted) by the city.
They have all been wrong.
In each and every case we issued a stop-work order (two were actually issued for a shed and a deck/sunroom extension).
In each and every case the resident had to re-do their plans to conform to our restrictions.
One man had to dismantle his shed entirely. It ended up costing him almost 3 times what it would have been had he gone through the proper approvals with us to begin with. (Part of that cost going to attorney's fees, by the way.)
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