New Board Attempt to Recall Prior ARC Approval

Started by PaulM • 16 replies • 3891 views

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PaulM (Pennsylvania)
Posts: 1,347

Posted:

Thanks to all who responded to my earlier post re a 'new' Board trying to recall or overturn a previous Board (2004) approval of our wood deck pad. We are still being harassed by this Board to dismantle the deck or else.... We have told them we 'stand firm' in the approval already received 2 yrs. ago but they continue to send hate mail.

Short of asking a lawyer to send a letter to 'cease and desist' we don't know what else to do. Of course, we could ignore them and not sign for the 'certified mail' they are sending us. This is indeed a case of targeted harassment.

My request of the forum is....please respond re any legal text from Roberts Rules or PA state documents on board approvals being recalled by a new board. Does anyone (Joe or Roger or Hindman Sanchez...) out there know of a legal response we can use to continue to stand firm.
Please Help! We are stressed and frustrated.

PaulM

RogerB (Colorado)
Posts: 5,067

Posted:

Paul, I would send them a letter with a copy of your approval of your qood deck pad. Request they discontinue their harassment if you have already provided proof of approval. Advise them to consult an attorney if they mistakenly think they have any legal right to recend this approval. Send this letter by certified mail return receipt requested and keep all documentation.

HaroldS (Arizona)
Posts: 906

Posted:

Paul - Your board obviously has no intention of accepting your proof. You can follow Roger's advice if you haven't already done so as a final contact with them on this issue.
I doubt you will find a specific reference in PA law regarding this situation - but it should be addressed in the section under contract law about one party not abiding by the terms of a contract. Which is what they are doing (or not doing). The counts always determine these HOA agreements are a civil contract. If you were in Arizona, you would soon have a state agency to turn to with this problem. Unfortunately I think you will need an attorney to write the board a letter, and if that doesn't end it, telling them a lawsuit will be filed. A letter from a reasonable contract attorney shouldn't cost that much and if it does go to court, I don't know about PA - if the courts award costs to the winner? - but your attorney should be able to tell you.
They are trying to bully you and they have no legal standing to do so. I would even sue for harassment too. You cerainly have documentation of that. Harold

WilliamT (Arizona)
Posts: 489

Posted:

What HaroldS is referring to regarding Contract Law is Breach of Contract.

It may be possible for you to sue them in a small claims court for breach of contract. Your damage is the amount it would cost you to replace the item they are wanting you to tear down.

You would sue for the amount it would cost you to replace the item with the item they want you to replace with. Get three detailed estimates from licensed contractors and sue for the one with the greatest amount. You also sue for your court costs. You can not add any attorney advisor fees to the claim.

Harassment is another claim you could make, and you would ask for punitive damage for pain and suffering. You may not get anything, but you add it anyway.

You can look up contract law in your state. You can call the small claims court advisor and ask how to begin.

The President or his/her designee would have to go to court to defend the action. They cannot be represented by an attorney, unless one of the directors is an attorney, in which he/she could represent the board.

Chances are that the board may choose not to appear, and you would win by default.

They may also settle with you after you file so they don't have to get involved in a small claims court action.

It's worth a try. However, in many states if you are the plaintiff and lose, you can not appeal, but the defendent may appeal if they lose.

Good luck,

CharlesW1 (Georgia)
Posts: 826

Posted:

PaulM- I think Roger’s advice is how I too would handle that particular situation. You already have an approved. That should be all it takes regardless of who was on the board or how long it had been. An approval is an approval!

I would also advice them, that if their actions continue that you will take the President, himself to court for harassment. Not the association. They aren’t the ones telling you to replace it!
I would think this could be handled without an attorney but if for some reason you can’t then, you may have to do just that.

Good luck
Chuck W.

Charles E. Wafer Jr.

BradP (Kansas)
Posts: 2,640

Posted:

Paul:

I would start with a cease and desist letter from you with a copy of the approval form and ask them to stop the harassment. If they feel the need to continue I would contact a lawyer. Do your covenants speak to the process for getting ARC approval, if so and if you followed them highlight that in your letter. At this point I would not even offer to let them take it down and replace it with their preferred material. And above all document everything, letters you send, letters you get, phone calls you get, etc. It sounds like an over eager board that will be getting in trouble soon.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

Brad P, thanks for your response and insight. At this point, we have done all we can and we feel we should sit tight. Sometimes after one has presented the truth it's best to just let it speak for itself and let it take its course.

However, I want to ask you & others on this forum about your own Architectural Approval Process. Our Declaration in Article IX ARCHITECTURAL CONTROL, Section 9.1 & 9.2 dictates that the 'Committee' shall approve proposals or plans submitted for approval...not detrimental, etc, etc....

Are we to interpret this to mean that the Committee (of 3 members appointed by the Board)has the power to approve or disapprove an architectural change, but the Exec. Board does NOT approve or disapprove? Obviously, the best way is for all to work together to come to a right decision. But I forgot, we're in a 55 community world--and this just doesn't happen...

So, how do others handle architectural requests according to their official documents?
Thanks to all for responses.

PaulM

HaroldS (Arizona)
Posts: 906

Posted:

Paul - it depends on your documents. In ours, the ARC has the power to approve or disapprove. The ARC then has the management company send the approval or disapproval letter. Now if an owner is not happy with a disapproval they can appeal to the board, and also if a neighbor or other owner is not happy with what was approved they can appeal to the board, but otherwise it is the ARC that makes the decision and the board gets involved only if there is an appeal. But no way can they reverse a two-year old approval. HTH. Harold (Of course in our case, an appeal is moot because for eight years the person who controls the board also controls the ARC.)

BradP (Kansas)
Posts: 2,640

Posted:

Paul:

Our ARC approves or disapproves all changes. The situation you are describing is what happens when you have a changing of the guard on boards and ARC committees, therefore it is important to have protocol that defines once you obtain approval it is set in stone and cannot be changed. Imagine what would happen all over America if it was ok for a new board to recind approval granted by a previous board. We all have different opinions and we all interpret things differently.

In your case I would stand strong, it was approved and there is nothing they can do.

RogerB (Colorado)
Posts: 5,067

Posted:

Posted By PaulM on 09/10/2006 9:09 AM
Are we to interpret this to mean that the Committee (of 3 members appointed by the Board)has the power to approve or disapprove an architectural change, but the Exec. Board does NOT approve or disapprove? PaulM

You are correct. The Developer writes the Declaration in this manner so he can control construction decisions after control of the Board of Directors is turned over to the homeowners. Often the Declaration is not changed if the association wants to have an appeal process. The board can set up a procedure so that an owner who is turned down by the ARC can appeal to the Board.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

Roger, pls. clarify your statement...The Developer writes the Declaration in this manner so he can control construction decisions after control of the Board of Directors is turned over to the homeowners. Often the Declaration is not changed if the association wants to have an appeal process.

Roger & others: We are 2-yrs into an 'assn. management' w/Board & committees of homeowners only. No one from Developer holds any position. How then does the Developer 'control construction decisions' after control of the Board reverts to homeowners and a homeowner association or HOA with Architectural Committee. I don't understand;
Sorry to be dense. Please explain further--possibly with text for an addendum as a Declaration update.
PaulM

RogerB (Colorado)
Posts: 5,067

Posted:

Paul, when the Developer has not completed all lots prior to the transition to an all homeowner's Board the Declaration allows them to maintain control of all original construction approvals. The Declaration often has two Architectural committees. The first is sometimes called an Design Review Committee (Developer's controlled) and a lower order Modification Review Committee which is made up of homeowners. When the Developer leaves total control goes to the MRC. The Declaration is written so it does not have to be amended to update unless the homeowners chose to do so.

Following is an example from a Declaration:
"The jurisdiction for the approval over modifications, additions, or alterations to an Improvement to Property may be delegated to a Modification Review Committee by the Design Review Committee in accordance with Paragraph 6.25 hereof."

HaroldS (Arizona)
Posts: 906

Posted:

Roger is correct. If you want changes to a home be sure to request them while the builder is still in control of the ARC - especially if he is a hungry builder. You can get changes and additions that a homeowner controlled ARC would probably refuse. We simply told the builder we would not buy unless we were allowed to have roller shades put on all side and back windows and doors. I know for a fact our homeowner controlled ARC would not have approved them - because they told me so. But there is not a blessed thing they can do about it - I have my approval letter from the builder and it is in a very safe place. Harold

PaulM (Pennsylvania)
Posts: 1,347

Posted:

Roger, if you can believe it we are still embroiled in this situation with exertion of new Board control to overturn prior 2004 Committee approved architectural change of a wood deck extension (8x10) off our sunroom. Our Declaration states "... the Committee shall approve all plans and exterior modifications..." which they did, but this Board is saying the approval is not valid because it wasn't on an appropriate form and the 'Board' didn't approve. It is somewhat ambiguous.

A QUESTION FOR Roger, Harold, Joe and anyone else versed in legalities...
Is an Association's Declaration covenant document based on State statutes (the Planned Community Act ?)and if so, where might we find reference to the architectural process/procedures? We're in PA.
Please respond. Thanks.

PaulM

RogerB (Colorado)
Posts: 5,067

Posted:

Paul, I can not help on PA statutes. However, a Declaration incorporates many state statutes in effect at the time it is filed. Architectural aspects usually are not in state statutes. Declarations usually require only architectural committee approval (Board approval is not required). This is common practice in Declarations since the Developer want autonomous control of the architectural committee until all units are developed even after Board control is turned over to the homeowners.

Since your quote only says committee it may not be clear to the Board that this means the architectural committee and not involve the Board. To answer this look to the surrounding text from which you extracted the quote. And you can ask the Board members "What committee is the Board of Directors? It is not ambiguous, it is POWER AND CONTROL. And this is what gives HOAs a bad reputation.

As long as the architectual committee approved your submittal then they also accepted the "form" on which the request was made. Otherwise, they should have asked for it to be completed on their "appropriate form".

BradP (Kansas)
Posts: 2,640

Posted:

Paul:

Did you ever send them a cease and desist letter? If so are they continuing to harass you on this subject? It may be time for you to get an attorney or if you have a friend that is an attorney have them write a letter. You are a lot more patient than I would have been. It is unfortunate that they are the board yet don't understand the rules.

HaroldS (Arizona)
Posts: 906

Posted:

I don't know PA law either, but it is doubtful it addresses an Architectural Review Committee's duties. Your documents are the controlling factor. If you followed them and even if the application was not on an "approved" form, but they accepted it and granted you written approval that is all that was necessary. Even if your documents require the board to also approve (mine does not)the committee probably reported the approval to the board during committee reports and the board apparently did not voice any concern at that time. A new board two years later cannot recind that approval. Actually, I don't know the composition of your board and ARC back then, but if like ours, the same female that has controlled the board for 8 years has also controlled the ARC for 8 years so that any approvals are well known to our board.
It is unfortunate that they are the board yet don't understand the rules. >>> Not all that uncommon, but where is the advice from your management company on this fiasco? They should know your documents backward and forward as well as current state laws.
I too would be seeking an attorney to write them a letter. Harold

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