Architectural Committee Has No Right to Remain Silent

By Benny L. Kass
Saturday, September 8, 2007

Q: My husband and I belong to a homeowners association that has a strong architectural control committee. We asked to modify our property, but our request was denied. We asked for an explanation, but we were advised that the committee did not have to give us any reason for the denial. Is the committee correct?

A: Absolutely not. Many associations have architectural requirements, often enforced by an architectural review committee that is appointed by the board of directors. Although the scope of these committees varies, the general idea is that to keep some semblance of uniformity and balance in the community, owners must receive approval from a committee before any work is done. Typically, this would involve substantial renovation of a unit in a condominium or cooperative; in a homeowners association, it would relate to exterior work, such as fences, trees or painting.

This is an area where there is no consensus. Many homeowners dislike these committees, especially when the committee members take an aggressive role and seek out every conceivable violation. In fact, some committees are referred to as the "local KGB" because of such activities.

Other owners -- and community association advocates -- believe that design review within an association has at least two purposes: to establish and preserve a harmonious design for a community and to protect the value of the property.

When one buys into a community association, one must understand that it is community living. Decisions cannot be unilaterally made, nor can the rules and regulations of the association be unilaterally ignored.

One might disagree with the need for external uniformity, for example, but if the association documents require external uniformity, that is the law of the association, and it is binding on its members. Read all of your association documents carefully to learn the scope and purpose of the architectural review committee.

But boards of directors must also recognize that the architectural control committee cannot be a dictator, rendering unreasonable decisions.

There has been much litigation in the area of architectural controls. The courts have made it clear that covenants are valid and enforceable provided that there are clear policy guidelines establishing the standards.

If no specific guidelines have been developed, neither the owner nor the review board will have any objective standards by which to judge the validity of the proposed external change. And without such standards, even the most well-intentioned committee can be accused of being arbitrary.

Case law throughout this country involving the decisions of these committees has developed a number of responses owners can use when handed decisions they don't like, including:

  • Arbitrary and capricious actions have been taken. The architectural standards must be applied fairly and consistently, and in good faith. It is improper for a board or its architectural review committee to pick and choose the enforcement of the covenants or to go against some -- but not all -- of the owners.

  • Delays have occurred. In legal terms, this is referred to as "laches" or "estoppel." This means that the board has permitted a lengthy period of time to elapse before taking action against an owner. For example, one court ruled that a board's six-month delay in filing suit against an unauthorized fence barred the board from enforcing the covenant.

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