Grandfathering problems about covenants

Our HOA was just taken over 2 years from the contractor. Now we have some people that have not followed all the covenants and the board wants to just ignor these problems and say that since they have been done for more than a year they are grandfathered in. I am asking if anyone else has dealt with this and what have you done. For example we require vinyl fences and some home owners have put up wood accent fences in the front yard, should they be required to take them down, as they are not of vinyl material. Also one person has a shed that is red in color the covenants indicate they need to be of a color scheme to match the home, which is a tan color. Should this person be required now to paint his shed to be more in color to his home? The board just wants to go forward from this point on and ignor all previous problems. Comments please or any legal ideas please let me know. I am on the board and an not having luck getting the other members to listen even though we have some complaints from home owners.

As a young community, you have an advantage over more established neighborhoods. If you stay on violation issues from the start, compliance rates are much higher.

Have you checked your documents and state law? In my state in general, non-enforcement in the past doesn’t usually affect an association’s ability to enforce in the future. Many CCRs address this issue, stating that failure by the association to enforce a covenant will not be deemed a waiver of the right to do so.

I think you have to pick your battles. While having the colors of all outbuildings match the buildings is important, I wonder about the fence issue. Perhaps your CCRs need updating, especially when it comes to the "green" emphasis now on the scene.

Homeowners should enjoy options and perhaps a choice of two or three fences is in order. Get an archtiectural design specialist in to help you formulate a "look" for your subdivision for the future.

I agree with Donna. OUR attorney says there is no such thing as "grandfathering" ANYTHING. He said the board is not allowed to pick and choose which rule violations we can "grandfather" in. It opens up a whole can of worms.

I would send out a notice to ALL homeowners that all the rules, regulations, documents, etc. will be uniformly enforced. The developer is no longer in charge.

Reva.

Our covenants under "Enforcement" state "Failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."

Check your docs. I seriously doubt there is any language re grandfathering. Just because your prior board ignored violations is no reason to continue doing so. Try to convince the other board members that allowing this to continue will devalue not only their homes but all and that they are there to represent all homeowners.

Glen,
We use one year from first becoming aware of a violation with no violation notice having been given.it could be difficult to enforce 2 year old violations but you can try to get it corrected without persuing legal action. Also, did the Developer give those owners a variance for one reason (sale) or another?

I have a different grandfather scenario. I still have the ORIGINAL fencing and siding on my home. Both are in relatively good shape. The HOA has decided that they would prefer vinyl siding and that my "weathered" fencing has to be "powerwashed" (like that would get rid of the aging that was originally there and required!). To add insult to injury our documents actually state that we are to keep our fencing in the condition we originally got it, with the exception of some wear and tear (I read this to not include decay and falling down, just aging!) So am I grandfathered????

AR,

As I understand it, grandfathering can only occur if there is a change in the restrictions. Seems to me your fence would qualify for grandfathering if it is not made of vinyl; however, if it looks shabby the HOA can require you to spruce it up, which is what it appears they have done.

DJ,
I would consider the red shed, which was painted with the color restrictions already in place, as a violation of the guielines, therefore it should be enforced as in non compliance. Either it gets painted tan or gets fined if allowed. No grandfathering here.

This seems to me to be where people use the grandfather claim for violations which are a year or 2 old. They are in non compliance, period. What the Board does to handle this is where it gets sticky. Changes in Boards result sometimes in how the association interprets and enforces their own documents. To me, even if a non compliant is 3 or 5 years old, it is still a violation.

Donna, isn't the color red a color scheme that matches the tan home? complementary colors can be part of a scheme. It doesn't say identical or similar color to the home therefore no violation.

DJ,
Based on Reva's original post---"Also one person has a shed that is red in color the covenants indicate they need to be of a color scheme to match the home, which is a tan color. Should this person be required now to paint his shed to be more in color to his home? "
I'd say that TAN is the color required.

With regard to the OP's statement that the board wants to "grandfather" these members, IMO this would definitely not be the proper thing to do. Disregarding violations to the CCRs is not called grandfathering! Grandfathering is allowing someone to retain something that is now forbidden, i.e. original restriction -- storage sheds may be painted a contrasting color; new restriction -- storage sheds must be painted the same color as the house. All storage sheds painted a contrasting color can be grandfathered.

So there would be no violation or need for grandfathering if I hang up RED curtains/blinds in all my windows which then allows a Red shed to match the color 'scheme' of the tan house...assuming the CCR's don't stipulate interior items. Not looking for loopholes, just clearly written CCR's that minimize misunderstandings between a HO and HOA.

This is not about grandfathering. However, it is about timeliness of action.

Courts throughout the nation have taken different stands on this issue. Some have held that a violation continues until brought into compliance (such as a non-complying fence continuing to exist). The association may act at any time to require compliance.

Other courts have held that a violation is a one time event (actual construction of the fence). In this instance the association has only a reasonable time to bring enforcement action. If it does not take action in a reasonable time, after the fence is constructed, then it has given tacit approval.

In my association, in particular, the covenant specifies that the board must act within 60 days of construction.

However, such tacit approval does not mean that the board has abrogated the restriction or the board power to bring enforcement against other owners. It can still seek to enforce the restriction against other owners in the future.

I would also expect that should the non-complying item require significant maintenance, it would be required to be brought into compliance.

A problem here is that most of these court decisions are not published and only summaries are known.

The color issue is also an interesting one. My association rules specify that trim will be painted white. However, there are many shades of white, even shades of "pure white." For instance, my house trim is clearly a whiter white than my neighbor's trim, although I know that his was painted from a paint can that said "White." It has to do with the quality and manufacturer of the paint.

Does the architectural committee have the authority to dictate a specific shade "more in color" with some aesthetic standard? If so, how do they specify that?

No, you are still wrong.

The color scheme of the house is "tan."

Only.

What you do on the interior, regardless of how it can be seen from the exterior, is irrelevant.

And you are looking for loopholes.

And still doing a poor job of it!

Thanks Michelle,

I thought that I was the only one who saw that the house is TAN. Red fence does not come near or similar in the TAN color wheel.

Funny how Donna and Michelle view my comments as an attempt to find a loophole rather than poorly worded CCR's. Others have demonstrated how on person interprets something like white different from another. The person painting the shed red could have been ignoring the CCR's or believed that red was a complimentary color SCHEME of a tan home. Tan and red DO go together in some parts of the country. One persons interpretation of 'MORE in color' to match the home. Either it should be the identical color or you are leaving it open to interpretation.

The OP confirmed these actions took place during the developer's control but we don't know if the homeowner talked to the developer for approval or not. If it is anything like our developer the 'paper trail' is sorely lacking or non-existent. Don't assume the homeowner is at fault and ignored some CCR's. Who has to prove there was no approval if the homeowner says they got it.

"The Combo Library contains pages of tan color combinations (a.k.a, color schemes and color palettes) for you to choose from."

http://www.colorcombos.com/tan-color-schemes.html

Funny how red and tan are part of the same color scheme.

Michelle, I am just reading the post differently than you. Here is what the OP said that might provide some insight.(on the color/shed issue)

OP said, "Now we have some people that have not followed all the covenants and the board wants to just ignor these problems"

The OP and the others who complained believe some people have not followed the covenants, or they just object to the color. The board isn't ignoring the problem if they are reading it the way I am and there is no violation, and equally no need for grandfathering or any other action.

OP said the covenants require the RED shed to be, "of a color scheme to MATCH the home, which is a TAN color."

The question is, is Red part of a COLOR SCHEME which MATCHES a TAN home.

MATCH has several definiti "correspond or cause to correspond; make or be HARMONIOUS"

HARMONIOUS also has several definiti "free from conflict; GOES WITH"

RED is part of a COLOR SCHEME which 1. Matches, or is 2. HARMONIOUS, or 3. GOES WITH, .... TAN.

Splitting hairs, loopholes, I don't think so. Providing specific color choices would have avoided this and making the HO repaint because you interpret the rules differently than they do isn't fair.

Nope, sorry, we will just have to agree to disagree on this.

I think you are parsing too much here.

Match as in alike, as in a similar color. Red and tan are not similar, nor do they "match."

Again, if the main house were red, then the shed would be good to go.

But it's apparently not. It's tan. So red shed and tan house are a no-no.

No, it did not.

And I still believe this to be a "weasel words" discussion. . . .

We have, however, won multiple "showdowns" on shed appearance "matching" the home. None have gone to court. All backed down after our lawyers spoke to their lawyers.

Um. Yes it does. It means that their "defense" was unusable.

We have only one lawyer.

Those 2 or 3 who tried to put up unapprovable sheds each had one lawyer apiece.

These covenants don't exist in a vacuum, regardless of how ambiguous you or I might feel their wording is at times.

Fortunately many HOAs who have crappily written documents many times have this particular clause as well:

"Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners."

So, we have this particular "get out of jail" card, it's the one that says, "We're right."

Therefore, if we clarify that RED does not "match" TAN, so is not a viable shed color for this resident, then if they don't repaint it, they will be in violation.

What might save them the repainting job? Something in writing from a previous board that either approves the shed as is, or approves the "red" color "scheme."