QI live in a neighborhood with a community association and am a member of the architectural control committee. We are unclear about the term "architectural guidelines." Are such guidelines only for guidance? Do they have the same force as our legal documents? Is disregard of a guideline ipso facto a violation? How should guidelines be enacted?
AHas your committee been accused of being the KGB of your association? Unfortunately, many community association members believe that people on the architectural control committees are spies who are trying to uncover every single violation, no matter the scope or size.
Most community associations throughout the country have some form of architectural review committee. Although the scope of these committees varies, the general theme is that to keep some semblance of uniformity and balance within the association, unit owners must receive approval from a committee before any exterior work is done.
However, there are owners -- whether in a condominium or in a homeowners association -- who believe that such control is not only unnecessary, but is an impingement on civil liberties. Some homeowners have had negative experiences with their architectural control committees; we have all read of the cases where these committees acted arbitrarily and without any common sense. In one case, an association asked a homeowner to remove a statute of the Virgin Mary from his front yard. Other cases have involved the struggles of those who want to fly the American flag and have been accused of violating the rules and regulations of the association.
However, 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 you buy into a community association, right or wrong, you must understand that you have opted for community living. Decisions cannot be made unilaterally, nor can the rules and regulations of the association be ignored unilaterally.
One might disagree with the need for external uniformity, but if the association documents require such external uniformity, that is the law of the association and is binding on its members. You should read your association documents carefully to learn the scope and purpose of the architectural review committee. Indeed, you should have read this material before you decided to purchase into the community, and definitely before you became a member of the architectural control committee.
Most legal documents for community associations require that before a homeowner can make any alterations to the outside of a home, the plans must be submitted to a committee, generally referred to as the architectural control committee. This committee is charged with determining if the proposed plans comply with the association requirements.
To avoid any confusion, and to make sure that the committee is not acting on whim or emotion, most associations have adopted guidelines. Sometimes these guidelines are quite specific -- for example, the color of the paint that must be used or the height of the fence. Other guidelines are rather general, and that is where the problems are. A homeowner believes that he is in compliance with the general guidelines, while the committee disagrees. These disputes, if not resolved by negotiation or by the board of directors, can lead to litigation. The area of architectural control is perhaps one of the most litigated issues involving community associations.
Although architectural controls have a purpose, boards of directors of community associations must recognize that the architectural control committee cannot be a dictator, arbitrarily rendering decisions.
Courts have made it clear that covenants are valid and enforceable, provided there are clear policy guidelines establishing the overall standards.
For example, it is not enough to say that owners may not make changes to the exterior without first obtaining the written approval of the board or the architectural control committee. If no specific guidelines have been developed, neither the unit owner nor the review board will have any objective standards by which to judge the proposed external change. And without such standards, even the most well-intentioned committee can be accused of being arbitrary and capricious.
Boards of directors must establish fairly specific guidelines, and if those rules are not already in your association documents, they should be drafted and approved by a majority of the homeowners.
Your committee also should be aware that the following will be valid defenses by a unit owner when the board tries to seek enforcement of the architectural standards:
* Arbitrary and capricious actions have been taken. The architectural standards must be applied fairly and consistently, across the board and in good faith. They cannot be selectively enforced. It is improper for a board or its architectural review committee to pick and choose the enforcement of the covenants.
* Delays, or "laches," have occurred. This means that the board has permitted a lengthy time to elapse before taking action against a unit owner. For example, one court has ruled that a board's six-month delay in filing suit against an unauthorized fence barred the board from enforcing the covenants. If a unit owner is in violation of the architectural standards, or at least the board believes there is a violation, the board must begin prompt action to assure compliance.
* A waiver has been granted to another owner. Basically, if the board fails to enforce a covenant in the case of one homeowner, it may be prohibited from enforcing the same standards against another homeowner in a similar situation.
Often, the association documents require the committee to make a decision within a specified period of time (for example, 60 days from receiving the request) or the request "will be deemed to have been approved." Since you are on the committee, make sure that you read your documents and follow the language carefully. If you must act on an owner's request within 60 days, it is not acceptable to reject it on the 61st day.
Because this is community living, there has to be a give-and-take not only by the homeowner, but also by the board of directors and the architectural control committee.
All too often, architectural control committees have been accused of asserting dictatorial powers. They can become obsessed with petty violations and lose sight of reality and common sense.
A considerable amount of money has been spent by both homeowners and boards of directors on litigation that should never have been brought.
Boards must sit down with the homeowner alleged to have violated the architectural standards and try to work out an amicable resolution. Boards and their architectural control committees must be firm, but also must be reasonable.
The Community Associations Institute has published a report, "Architectural Control: Design Review." For information, call 703-548-8600; Web site: www.caionline.org.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.