Are Declarations the Very Final Word?

Started by MoeM • 7 replies • 2259 views

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MoeM (<Click to Select State>)
Posts: 12

Posted:

Are there any instances in which "general" law can by applied to supercede the wording of the declarations? Specifically, if the Decs call for "written approval or disapproval within 30 days of submission" to be provided the owner, and that without written dis/approval, approval is given by default, where no written dis/approval is given a homeowner—is the failure to provide such the defining action (more properly lack of action)?

Are there any extenuating circumstances that would overrule the (lack of) action? and consequences stipulated in the Decs?...including any conversations between owner and HOA regarding the contested details of a submission at or after the 30 day deadline?

DJ1 (Ontario)
Posts: 798

Posted:

I would guess that if it says 'written' and approval/denial within 30 days, that failure of the ARC to do so would allow the homeowner to proceed regardless of any verbal discussions, especially as in an issue of contention, the homeowner's recollection of any verbal discussions would likely differ from the version by the HOA.

I would further guess that this should be a learning lesson for the HOA to ensure THEY comply with the terms of the CCR's if they want homeowners to do so as well.

During the time it was represented by the Developer that we were part of the HOA, we submitted a variety of requests for ARC approval and when no response was received within the required 60 day period, we followed up with an email thanking them for their approval of our request. This immediately resulted in a reply from the ARC asking 'what request' to which we replied with a copy of our original email. There was no formal form to make requests so email had been an accepted method prior to this time.

DJ1 (Ontario)
Posts: 798

Posted:

One clarification,

Our CCR's said also specifically state "applications shall be in writing" and "shall also submit any additional information the ARC may request" and "In the event the ARC fails to approve or disapprove an application for approval within 60 days after the application, together with all supporting information, plans and specifications requested by the ARC have been received by it, approval shall be deemed granted."

IN our case it doesn't say any request for additional information had to be in writing so if they had have verbally asked for more info, and if we hadn't provided it, then we could not claim because the application wasn't approved/diapproved within 60 days that it was then granted.

What is the specific wording in your CCR's for 'improvements by the ARC"?

RogerB (Colorado)
Posts: 5,067

Posted:

Moe, I would suggest if a reply is not received within the specified time period that you send a followup letter. In it state that since a reply has not been received within the specified time peroid that you are proceeding with modifications as per your Covenants. I would then wait a couple weeks to allow time for receipt and reply.

The extenuating circumstances could be 1) failure to receive your request and 2) failure to receive their reply. Thus it is wise to CYA.

MoeM (<Click to Select State>)
Posts: 12

Posted:

Well, without getting into a number of tangential issues, suffice it to say that the owners and the HOA archi committee members have been in what feels like constant (3-4 exchanges/week) email communication discussing materials, methods, and alternatives, with concurrance on all but one or two issues. The governing dox don't state the type of submission but we're confident that our written and drawn, prepared and refererenced submission, with proof of deliery, and the subsequent email conversation is totally sufficient proof of satisfying the requests and demands for increasingly granular project details.

MoeM (<Click to Select State>)
Posts: 12

Posted:

Thx Roger. So far our notification to the HOA has occurred via return-receipted email, a personal courtesy call to the President, and tomorrow we send certified USPS letter.

ChadK (North Carolina)
Posts: 43

Posted:

What state do you live in?

In NC the documents govern in the following order the

The laws...NC planned community act
the declaration
the bylaws
the articles of incorporation

in the event of conflict between the documents the one above overides.

I bet your state has similar laws.

BrianB (California)
Posts: 2,820

Posted:

one sneaky thing to watch for, IF your wording is exactly as the wording quoted in the earlier reply, (ie, the board must approve or disapprove within X days, or ....)

If the requestor can drag out the conversation, providing of information, etc. past the deadline, then the rule falls on his side... the rule states the board must approve or disapprove within X time... still requesting info, asking for samples, etc.. occurs with the clock ticking.

The option of the board, in that situation, is to disapprove the request at the last day, and then request a new proposal to be considered, thus starting the clock over.

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