Publications

Architectural Control

One of the main reasons people consider when deciding to live in a property administered by an association is the concept of "uniform appearance." While some may find the sameness of color and style monotonous, community association dwellers like the fact that everything looks exactly the same. (I guess this would apply to people who support military, job and parochial school uniforms, as well.)

One of the most important committees for a townhome or single family home association is its architectural control committee. These are the people who are going to review everything from fences to actual dwelling plans and recommend a finding to the board of directors.

Association law being a relative newcomer to our legal system (the general rules of real estate date back to William the Conqueror) produces more legal decisions on the issue of architectural control than all of the other combined. These are some of the issues associations routinely deal with.

The developer approved a modification while controlling the board and there is no documentation.
The declaration requires the association to file suit within 30 days of completion to stop a non-conforming addition and it is not even discovered until after 30 days has expired.
There are no rules for a specific change and the board wants to deny it.
Four years after installation the board decides they no longer want to permit it.
The homeowner received a building permit from the City so they believe they can do whatever they wish.
The homeowner does whatever they want and thumbs their nose at the rules.

Confronted with these and innumerable other scenarios, the board has few choices; leave it be, levy a fine or go to court to obtain an order for removal. Each one of these alternatives comes with its own set of problems:

By ignoring it, it does not go away...it spawns an epidemic of more of the same. Also, by trying to stop something else, the board is not accused of discrimination;
By levying a fine, there is a punishment, but the object of offensiveness is still there; and
By filing suit, you will spend thousands of dollars, plus 1 to 3 years in court and even if the declaration requires the owner to pay legal fees, the odds are better than 50/50 the court will not award the full amount.

Therefore, starting with the initial adoption of policies and procedures, a pro-active board can minimize the aggravation factor.

Adopt comprehensive and detailed architectural control guidelines. Most improvements such as screen doors, patios, decks, fences, etc. can be addressed, but there has to be a general provision prohibiting any exterior modification without the written consent of the board. Homeowners are very creative and will often test the limits of the board's rules with something no one has thought of.
Make sure the guidelines are reasonable and easily enforceable. If you make them too burdensome, they may be difficult to enforce. When you discuss an area that may be controversial, it may be wise to submit it to the membership in the form of a non-binding advisory referendum to get some input before going forward.
Establish a small committee to review requests. Soliciting qualified or experienced people helps, but the personalities should be diversified if not experienced. If an association is required to review plans for new dwellings, it should retain the services of an architect to do the review and advise the committee. Obviously, the cost of the review can be passed on to the owner.
If the declaration has a prohibitive deadlines like 30 days, have the committee or the property manager walk the property once a month to identify non-conforming changes. Although a board or its committee(s) should not be acting as policemen, unfortunately declarations sometimes impose that requirement, particularly if community members do not self-police.
Set reasonable deadlines for submission of plans, review and approval/rejection. Most owners are anxious to get started and sometimes construction costs are locked in for a limited time. Provide specifications, application forms and guidelines promptly to avoid unnecessary animosity.
Send periodic reminders about the rules governing architectural changes so no one can claim that they did not know about the policy.

These are recommendations that can be implemented to avoid future problems, but what about the ones that currently exist that have not been acted upon?

Try inviting the homeowner to a meeting and see if you can reach a compromise on some type of modification; allow the owner to keep the amenity until they sell and then the property must be restored; grandfather the structural change but establish a policy that no new ones will be permitted; or allow it to stay until it has to be repaired or replaced.

If these are not successful strategies a board may have no choice but to file suit. Failure to do so may result in the board being sued for failure to enforce the rules. In any event, the board must take some action to preserve the architectural integrity of the community.