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February 22, 2007
Failure to Apply for Architectural Approval - How Do You Get The Members Attention?
In many HOAs, the governing documents require that members apply to an Architectural Committee, or the Board (which in some cases acts as the Architectural Committee if volunteers cannot be recruited), and get written approval before beginning construction on any improvements or changes to the exterior of the homes, units or structures. In many HOAs, the owners ignore these requirements and it leads to serious problems. Owners start constructing things and making changes and at some point the Board understands that there is a big problem brewing. If owners continue on track, at some point, the governing document provisions providing control over architectural style, aesthetics, and the look and character of the development will fall. They will become unenforceable. Talk about individuality ... it could sprout and spread like a bad weed. The whole purpose of having architectural limitations is to preserve the original look, style, architecture, and consistency of the buildings and improvements. This vision began with the developer of the property and lives in the owners who are in favor of reasonable controls.
Once the Board is dealing with 2 or 3 or 4 or more works of "improvement" that were commenced without regard for the approval process, it knows real stress (as if that has not occurred already). A decision has to be made on many fronts:
What is it going to do about the changes that have already been made - ignore them? Ask the owners to apply for retroactive permission? Force the owners to remove or change the improvements?
What if the changes are something that would have been approved if asked? Is that something that is worth addressing? What if those owners decide to make more improvements, but the new ones are not something that would be approved?
What is the Board going to do about changes that would not have been approved? Demand that they be removed? Negotiate a settlement of some kind that would help to avoid precedent?
I cannot answer these questions or provide any kind of advice without knowing specifically what is happening, and this column is not for advice anyway, but I can suggest some ways to avoid this kind of scenario.
1. Give the owners the scoop, early and often, as to what the documents require, when they must apply, where to apply, how and to whom. I said often. I said often. I said often. Do you get it now? You can publish a box in your newsletter everytime one goes out. You must, under California law, circulate the architectural processes and procedures each year with the annual budget packet. You need to include these procedures and processes with all new owner packets.
2. Keep on top of the situations where owners have not applied prior to commencing construction of improvements that require approval. Get stop notices out immediately in any situation where you can, with a warning that proceeding with the construction, painting or whatever is occurring will be at owner's risk of having to remove or redo the job. If the Board is diligent with these, word will spread.
3. Consider disciplinary action. Develop a fine schedule that works as it should - as a deterrent more than a fund raising tool, but consider a hefty fine fine for failure to apply for architectural approval when the application is required. What do you think - is $1000 too steep? $500? $250? Be sure the fining policy allows for daily, weekly or monthly fines. Fines have to be sufficient to "deter". A $50 per month fee might not work as punishment for a room addition that sends the neighbors balistic, for example. But be sure that you are not adopting a fine schedule for which there is no authority in your documents or the law, or that conflicts with limitations in the association governing documents. And be sure to follow all requirements related to distribution of the fine schedule to members for comment before adoption (a California requirement.)
4. Check the documents to see if the Board has the right to charge back attorneys fees and costs to the owner of the unit or lot involved, as a reimbursement assessment, when the fees and costs are incurred in attempting to enforce the governing documents.
5. Negotiate agreements when necesary that help prevent precedent, that disclose to future purchasers any agreements made to remove improvements on sale, that "grandfather" existing situations that cannot be remedied because of facts, circumstances or cost concerns.
6. In addressing architectural violations, do not give advantages to "friends" or "favorites". In other words, if you are taking action on specific types of violations, make sure that all owners with the same violations are getting letters and being asked to do the same thing. If you are holding hearings and fining people, make sure these actions are consistent. However, I understand that you may end up in a position where the Board has to take one or more matters a step further, asking for court intervention, and in this case, it may not be fiscally prudent to move to this point with all current situations. Perhaps it is time to ask the court for a declaration of what is right, or an injunction mandating action, or damages. If you cannot afford to take the maximum action against any or all of the owners in the same boat, document the reasons as to why you are moving forward. If the Board has determined that legal intervention is needed to "stop the bleeding" or for some valid reason, it should be acceptable to choose one situation and not the others. And the reason as to why one existing problem is being "taken up higher" and not others needs to be palatable, for any potential hearing officer who has to respond to complaints of favoritism or inconsistent treatment to understand and accept them.
Why would I ever suggest a hefty fine for the "simple act" of failing to seek architectural approval? If you have ever had to get an attorney involved in a situation where residents have commenced various "projects" without regard to the required approval process and the documentary architectural controls, you know that it does not take much activity to incur costs and fees upwards of $1000. So ............... starting out with the threat of a fine of $1000 for failure to apply for architectural approval when application is required seems a reasonable place to start. Fines and fees may always be waived, suspended or deferred if the facts and circumstances warrant it; but the point here is getting the owners' attention about the application requirements prior to construction. That might do it.
A Board's "job" is not easy. What I am suggesting here is to just think about these things. Diligence and deterrence .. these principles are important and helpful in many areas, and this is one of them.
Posted by Beth Grimm at February 22, 2007 6:30 PM