CC&R Interpretation

Hello all,
We are in the process of updating our CC&R's. First we have to understand them. There are just a handful of HOA's in my little town, therefore, few real estate attorneys who specialize in this area. Before I hit one of them up, I was hoping to get some feedback on what I think the wording in this covenant means:

"Before any construction is commenced on any lot, and before any exterior alterations are made to any of the existing structures, a copy of the architectural plans and specifications and site plan of the proposed structure and its location shall be submitted to the Residential Committee. Such construction or alteration shall not be started until approval in writing has been given by the Residential Committee."

Here's how I interpret this. This is addressing two separate things: the lot and the existing structure (the house.) It is addressing construction separate from the house and construction to the house, which, since all the houses are built, would be the exterior alteration. Otherwise, if all this meant, as some here believe it does, is any exterior changes to your house only, would it not say, "Before any exterior alterations are made to the existing structure,etc. . .?"

So, if someone wants to lay a patio either off the back of the house, or somewhere else on the property away from the house, in both instances it would have to be reviewed and approved by the ARC. (I'm working to change our Residential Committee to ARC, so I'll use ARC herein). If someone wanted to put up one of the old-fashioned two-poled clothesline, on which our covenants are silent, would this be considered "construction on the lot," as concrete would have to be poured? Does construction imply the permanency of a concrete foundation vs. something you can put up and take down, e.g., a play structure, arbor, above ground pool (anything that does not require concrete.) Or, some pergolas are not attached to the house, but all are an exterior alteration the the house, so these too would need approval.

What say you?

Dorothy

This was written before any of the houses were built. Therefore, it had to say before construction is commenced on any lot. If it simply stated "Before any exterior alterations are made to the existing structure" it would not have made any sense for an empty lot. I would not agree with your interpretation.

Dorothy

I was disagreeing with the interpretation that there are two things: the lot and the existing structure (the house). My interpretation is that the two things it addresses are (1) new construction ("Before any construction is commenced on any lot") and (2) alterations ("any alterations to existing structures").

The bottom line is that I agree with you that it addresses both new construction and alterations.

The wording in our covenants is: "No building, fence, garage, or other stucture shall be erected, placed, or altered until ...."

Mary,
We have no language in our covenants addressing what can be seen from the street. To allow the same material used in the back but not in the front (your walkway/patio stuff) would not fly here. Clotheslines are not mentioned anywhere.

The only other section we have is "Additional Structures: No outbuildings, trailers, tents, shacks, mobile homes, temporary buildings, guest houses, tool sheds, storage buildings or similar structure shall be erected upon any lot." This is the most contentious section in our CC&R's. Is a clothesline a structure? Is a pool? Does the "similar structure" mean similar in usage or similar in appearance? Childrens wooden playhouses have been de facto prohibited by this intepretation, as an "outbuilding," as have gazebos.

Of the three phrasings, 1) any construction on any lot, 2)exterior alterations to the existing structure, and 3)additional structures & similar structures to those listed, the exterior alterations to the existing structure is the most straight-forward and not easily open to interpretation. The other two beg definition.

How I would prefer to read this is that "any construction" means any construction, be it a clothesline, a pool, a patio, etc., that must be reviewed by the ARC. How I would prefer to read "additional structure," and "similar structure" is in usage rather than appearance. Storage or inhabitation are the two uses implied by the types of structures listed, with inhabitation being covered in our Building Use section against that. So, storage would be the one being addressed by the types listed. Non-similar structures are not addressed, which would then fall under the "any construction" clause.

Having said all that, I am not looking to add more restrictions, e.g., the view from the street. I'm looking for clarification, understanding, and guidelines of what we have. Of all the covenants the "Additional Structure" one historically been the most problematic. It is the one on which the committee will have the most discussion with the homeowners as we proceed with the revision process. But now I see it as linked to Section 4, where the "before any construction etc. ." phrase is.

So, again, the clarification of that phrase, "any construction" is crucial. Right now I'm pretty darn sure the majority of homeowners do not interpret that line literally!

Dorothy

Janice,
Thank you for that good explanation. We only have the CC&R's, no Guidelines, and no Resolutions separate from them. I've not heard of other documents, such as Guidelines or Resolutions that basically address specifics. How is that not seen as a backdoor to changing the covenants without having to get the percentage needed for approval?

Could you give me one example of a Guideline? Also, a Resolution? Thank you.

Dorothy

Mary,
This makes sense to me. Your Architectural Guidelines are a part of your CC&R's, therefore under the rules and regulations of those CC&R's, and are not an independent document, as in a "third" governing document, CC&R's, Bylaws and Architectural Guidelines. As for Resolutions, I've understood them, as you described, to be a Bylaw function, which is where the direction for the governing entities to govern are found. For example, my Board just created and now requires our first ARF, Architectural Review Form, to be used by anyone wishing architectural review. It is a management tool designed for a system of record of all architectural changes, as well as conforming, indeed, to the CC&R requirement to get any approval in writing. For this we did not need homeowners approval.

While our CC&R's do have specifics when it comes to construction of the home and now any addition, as well as fences, driveways and garages, and the ever-evil tool sheds, etc., they are woefully to some, while blessedly to others, silent on any other guidelines about typical modifications to property. Your guidelines sound quite helpful, as well as a sensible application in the inevitably, murky world of CC&R's.

Dorothy

Dorothy,

The fact that my CCRs contain the architectural guidelines (which are quite comprehensive) is not the norm. The CCRs of my former assn gave the architectural committee the authority to formulate and adopt architectural guidelines. My HOA is comprised of 17 subdivisions. Within those subdivisions were lots set aside for custom built homes therefore the developers wisely adopted a set of architectural guidelines to be used. Architectural guidelines that are formulated by a BOD or A/C committee usually do not address most of the aspects addressed in the guidelines that are a part of my CCRs, i.e., design review, elevation, setbacks, off-street parking, roof geometry, etc., etc.

I must say you are incorrect in thinking the resolutions are a part of the bylaws. Any board-adopted rules or resolutions are "stand-alone" documents although they have the same enforceability as the other gov. docs because those gov. docs give the board the authority to formulate them.

Where in Washington are you? I can recommend Hanson Baker for a HOA attorney. They are based in Seattle.

A very good example of CC&R's in Washington is for the development Klahanie, and they do have them online. (this is not where I live) When we wanted to redo our CC&R's and Rules & Regulations I found it helpful to look at other HOA documents in the same state and county.

Dorothy-

Our CCRs, that are recorded, have a section of Arctitechtural Guidelines much like others have discribed (set backs, materials... all for the builders, a basic desription of the overall community building standard).
We also have a seperate document that is a Community Wide Standard Guideline which covers Landscape Guidlelines, Modification Guidleines and Maintance Rules & Regulations.
This document was proposed by the ARC Committee, sent to the residents to review and adopted by Resolution by the BOD. It was voted on by the members of the BOD. Because it was not a recorded change, we did not have to have a vote by the residents (or in our case , we have voting members).
Here is a copy of the refrence page (this way you can see how detailed it is):
Section 1- Exterior House Standards
1.1 Fences
1.2 Retaining Walls
1.3 Decks
1.4 Painting
1.5 Roofing
1.6 Attached Structures
1.7 Storm Windows and Doors
1.8 Windows
1.9 Window Boxes
1.10 Awnings
1.11 Driveways
1.12 Parking Pads
1.13 Sidewalks
1.14 Patios and Walkways
1.15 Patio Covers & Trellises
1.16 Detached Buildings
1.17 Mailbox and Mailbox Post
Section 2- Landscaping Items
2.1 Gazebos
2.2 Water Features and Ponds
2.3 Sprinkler or Irrigation Equipment and Wells
2.4 Bar-B-Q grills and Fire pits
2.5 Exterior Lighting
2.6 Exterior Decorative Objects
2.7 Clotheslines
2.8 Vegetable and Garden Plots
2.9 Woodpile
2.10 Air Conditioning Units
2.11 Garbage Cans/ Recycle Bins
Section 3- Recreational Equipment
3.1 Pools and Hot Tubs
3.2 In- Ground Pools
3.3 Play Houses and Tree Houses
3.4 Play Equipment
3.5 Basket Ball Goals
3.6 Tennis Courts
Section 4- Miscellaneous Items
4.1 Animal Houses
4.2 Pet Management
4.3 Dog Runs and Dog Pens
4.4 Parking
4.5 Sight Distance at Intersection
4.6 Plants and Flower Pots
4.7 Front Porch and Stoops
4.8 Storage and Garden Sheds
4.9 Seasonal Decorations
4.10 Flags
4.11 Signage
4.12 Spirit Signs
4.13 Satellite Dishes
4.14 Energy and Water Conservation Equipment
Section 5- Landscape Guidelines
5.1 Landscaping
5.2 Mulching
5.3 Edging
5.4 Landscaping Standards
5.5 Landscaping Beds/ Trees/ Bushes
Section 6- Maintenance Rules and Regulations
6.1 Exterior Maintenance
6.2 Acceptable Strom Water Control Practices
6.3 Acceptable Landscape Maintenance Practices
6.4 Debris
6.5 Basketball Goal Maintenance
6.6 Mailbox and Mailbox Post Maintenance
Here is a small example of the contents:
4.1 Animal Houses
Owners must submit detailed plans including site layout, material type, color and landscape plan, approval is needed before installation.
Animal houses are allowed in the rear yard and must be located close to the house and provide minimum visual impact to adjacent houses and streets.
The exterior colors and materials must relate to the exterior of the house and be discreetly located.

4.2 Pet Management
No pet is allowed off of an homeowner's property without a leash that has a person attached to it. Conflicts in regard to loose or stray animals, including prolonged barking should be directed to XXX County Animal Control XXX.XXX.XXXX.
Pet owners are responsible for cleaning up their pet waste while walking them in Common Areas or on a homeowners property. Proper clean up on the pet owner's lot is necessary, immediate removal of pet waste is required.

4.3 Dog Runs and Dog Pens
Dog runs and pens are not permitted.

Basically if you want to know if you can do anything, this provides if you can, how you can and what to do (application process to approval/ denials).
Our community did not have this handed over by the Developer, most developers do not provide this because it should come from the community.
Our BOD asked for a committee to form and write this document. I was the chair (before I was on the BOD)and worked closely with our manament company, BOD and attorney to write a comprehensive list that could be enforced. It took a committee of 7 members 6 months to write this and I personally put it 100s of hours of reading and review.
This does not change anything from our recorded CCRs, it is used in conjunction with them.

As far as a Resolution here is a part of one of our Resolutions (this is how each one starts):
LET IT BE RESOLVED that the Board establishes the Resolution Process as follows:
1. As appropriate, the Board shall adopt Resolutions in one of two forms:
a. POLICY RESOLUTIONS relate to governing the Association, including but not
limited to, actions affecting the members' rights of enjoyment and obligations, and
the protection of Association and members' equity.
b. ADMINISTRATIVE RESOLUTIONS deal with the Association's operation,
including but not limited to committee responsibilities, financial procedures, and
policy and rules administration.

I hope this information helps.
Janice

Janice,
How thoughtful of you to provide those guidelines. If I presented something like that to our association I would be run out of the neighborhood! When the Board presented our one page Architectural Review Form, mandating its use from that point forward, cries of "Police State!," "A man's home is his castle!" could be heard throughout the land. It was breathtaking in its silliness.

Our CC&R's, as well as our Bylaws are indeed recorded, the former requiring the 75% homeowner vote, the latter 51%. I am inclined to have a association-wide discussion on how we want to address the ambiguities of the "architectural" language, be it structures, construction, or alterations. I have heard that the best possibility in getting CC&R revisions passed is to make as few changes as possible, so as not to scare the "children." I'm hoping, during a special meeting, we can come to a consensus on how to address these gray areas. I will most definitely be bringing your guidelines to my next committee meeting though! Thank you!

Dorothy

Peter-

I agree and like what you have posted.
The BOD I was on and the committee I Chair feel very strongly about those points.
I recommend every BOD to have a good set P&Ps in place before they enforce any of the aforementioned topics.
As a Board Member you will never look so bad as to not have a policy in place to stand behind.

Dorothy-

I understand your comments COMPLETLY and I laughed out loud (so true)!
A few residents didn't like it either, but we could not let a few bad apples spoil the bunch. Those are the same few who *itch about everything but don't do anything.
The committee took everything into consideration and did a thorough review and had the attorney look at it before it was proposed.
The completed Guideline really has made life easier for residents, the BOD, the ARC committee & the Property Manager.
I hope that your community can come up with something to remove the "guessing game" from your documents.

Janice