Avoid Litigation by Developing & Implementing Proper Architectural Review Policies
Friday, September 25, 2015
Posted by: Jonathan Szabo
It is a common practice in common interest communities that are governed by a homeowners association to have provisions in the association's governing documents that require approval from the homeowners association for all changes to an owner's separate interest or the common area. While many associations have an architectural review committee to assist the board of directors in dealing with homeowner requests for architectural modifications, because the board of directors has the ultimate responsibility for dealing with architectural modifications, it is important for the board to have an appropriate policy, applicable standards and clear guidelines in place so that homeowner requests for modifications are properly handled.
State laws and case decisions generally require that an association's policy for approval of architectural changes must provide a fair, reasonable, and expeditious procedure for making the decision and should provide standards on which common architectural decisions will be based. Because laws change, it is necessary to periodically review an association’s policies and guidelines to make sure that they are consistent with the new laws. Attempts by homeowners associations to enforce outdated policies that should have been modified as a result of changes in the law are a constant source of litigation between homeowners and their associations. Such litigation is unproductive, costly and has a divisive effect on the community.
Homeowners associations can minimize the potential for becoming embroiled in such litigation by keeping informed of changes in the law that need to be incorporated into architectural policies and guidelines, and making appropriate changes to insure compliance with those laws. Current areas where there have been changes in laws that many homeowners associations have not accommodated and have resulted in unnecessary litigation include the use of drought resistant landscaping and/or artificial grass, the tolerance of reduced watering for water conservation, the allowance of solar panels, and the charging of electric vehicles.
An association's standards for approval of architectural modifications should be contained in a writing that is provided to all homeowners on an annual basis and when an association denies an owner’s application for approval of an architectural modification, the denial should include a written explanation of why the application was denied. Court case decisions have held that decisions on applications for modifications can be subjective and that architectural restrictions need not be precise, but there must be reasonable standards for architectural review. For instance, in one case the court held that an association’s guidelines for installing solar collectors was reasonable because they permitted certain types of collectors and were aimed at ensuring installation of aesthetically consistent collectors rather than banning them altogether. Thus, court decisions support an association’s ability to ensure a uniform and reasonably high standard of artistic result and attractiveness through decision making that may be subjective in order to maintain conformity with a community plan.
While some homeowners associations will require “neighbor notification” of requested modifications (to provide an opportunity for the neighbor to be heard on the issue), an association’s architectural review policy should not be worded in a manner that transforms a courtesy notice to a neighbor into a veto power of the neighbor – the right to approve or disapprove of the requested modification is vested only in the association.
Some general practices regarding architectural modification policies that homeowners associations should employ include:
• Develop clear architectural review policies, rules, and standards so homeowners can understand them;
• Incorporate flexibility into architectural review policies, rules, and standards to accommodate undue homeowner hardships;
• Avoid calling architectural policies, rules, and standards “guidelines” because owners think of “guidelines” as being optional;
• Communicate your association’s architectural policies, rules, and standards to all homeowners and residents annually;
• Provide owners with illustrations and/or examples of any policies, rules, or standards that are difficult for owners to comprehend;
• Develop and implement a standard process to review, assess and respond to owner requests for approval of architectural modifications;
• Consistently and fairly enforce the policies, rules, and standards for all residents.
An awareness of the responsibilities of homeowners associations relative to the handling of homeowner requests for architectural modifications and the implementation and following of the general practices described above will enable associations to more effectively and efficiently deal with applications for architectural modifications and should minimize litigation that results from a lack of awareness and a failure to follow the proper practices.