Q: I recently purchased a single-family detached home in a 55-plus community, which has a pergola covering my patio.
I petitioned my homeowners association to allow the installation of clear roof panels on my pergola for year-round weather protection. They denied the request. Upon receipt of the denial, I appealed to the association asking them to reconsider because other homeowners in the community have roof coverings on their pergolas and that I would be happy to install the same type on my pergola.
This appeal was also denied, and they responded that the declaration gives the board of the association the right to change its view relating to aesthetic matters, as well as interpretation, application and enforcement of the design guidelines in the homeowners association documents.
Based upon the aforementioned, do I have any recourse with the association or should I consider the matter closed?
A: Well, that doesn’t seem quite right. From where we sit, we think your homeowners association should have some consistency in the design and construction guidelines for all pergolas in the development.
While we understand that one board of directors can differ from the next on what they think is nice and aesthetically pleasing, if the look of the pergola is consistent with others on the property, it shouldn’t matter what materials are used under the covers, so to speak. And we wonder why they would no longer allow what most everyone has already done.
Most association documents contain language that gives the board some cover, but typically association boards have a duty of good faith to their fellow owners and can't act in a discriminatory or capricious manner.
The curt tone of the letter makes this seem like a capricious denial. You may want to wait until the next election of association board members and make your request again. (You might even want to run for a board seat, so you can see what is really going on.)
You could hire an attorney to review the issue, but we don’t know how far that will get you, whether you’ll make enemies or friends, or how much it will cost. You should also research the rules of the association to see whether there is any document that describes what can and can’t be built. We assume that your association documents allow people to modify or add on different items to the homes. Some of these may be structural changes and others aesthetic.
If you can figure out what standard the board must use legally to evaluate construction and aesthetic changes to the buildings, you’ll have more insight on how to plead your case. You may also be able to review some of the older meeting minutes to figure out what other owners said to get those boards to grant the approval and see whether your request is similar (or different enough) to instruct your appeal. Finally, we suggest you make friends with the owners of the other pergolas and solicit their suggestions on how to get your petition through the board.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them Sam through her website, ThinkGlink.com.