UrellaH
(Pennsylvania)
Posts:15
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| 07/17/2008 10:58 AM |
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| In my HOA some of the units were built with decks and later some units added decks.We submitted plans for building a deck, but were denied. The BOD said it was for aesthethic reasons. But my neighbor is a member of the board and she does not what us to have a deck. She claims it will make our property value more than hers. The BOD then said that all existing decks will be "grandfathered in" and no new decks will be approved. Can they do this without changing the declaration? |
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BradP
(Kansas)
Posts:1742
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| 07/17/2008 11:27 AM |
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Urella:
I would appeal the decision in writing and ask the board to expound upon the "aesthetic reasons". I see no reason if your plans are identical to the other decks that have been built why you would be declined. Aesthetics is a poor excuse IMO. |
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UrellaH
(Pennsylvania)
Posts:15
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| 07/17/2008 11:41 AM |
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| We did appeal in writing. I wrote a lengthy letter explaining why a deck would work better for us instead of a patio. Theere is a slope that would require a retaining wall should we decide to do a patio instead. The plans for the deck is exactly the same as other decks in the HOA. We also went to the open meeting and appealed a third time. We also asked for the BOD to come and take a look at our situation, but no one bothered to come at all. |
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DonnaS
(Tennessee)
Posts:2852
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| 07/17/2008 12:16 PM |
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Urella,
Exactly what does the Declaration say about decks? Grandfathering in means that there was a change in deck requirements someplace unless the BOD just decided to change that all by themselves. But if there is written restrictions in the CC&Rs, then the only way that the Board can alter that is thru a vote to the membership. And indeed if there is such a voted change, the "grandfathering in clause must be written in also. Otherwise, the very stupid statement by your neighbor/Board member, that the deck will make your property value more than hers is hillarious and she needs to be called on that. Those words are called "hearsay" and do not have any credibility. Who told her that or what does she base that statement on? The aesthetic reason is??? How come identical decks pass?
But really, send us what the Declaration says about the decks. |
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JohnO6
(Georgia)
Posts:122
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| 07/17/2008 12:20 PM |
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I, for one, would LIKE to have my neighbors' property to increase in value more than mine. In fact I would want as many neighbors as possible to have their respective properties increase in value as much as possible.
See where this is going? ;) |
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GeraldT4
Posts:932
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| 07/17/2008 12:23 PM |
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| UrellaH - The only time the perceived value of your property vs. your neighbors would be relevant is if you both were selling at the same time. Possible but not likely. If anything, a deck addition would increase the overall value of the association, that is if someone was willing to pay more for your unit because of it. The result would be that your sale price could get factored into the comparison of homes during an appraisal process thereby helping your neighbors, not hurting. If you hit a dead end I'd threaten to, and sue based upon discrimination. First writing a letter to that effect copying my attorney. |
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UrellaH
(Pennsylvania)
Posts:15
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| 07/17/2008 12:48 PM |
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The Declaration says - No exterior construction, changes, alterations or modifications including additions of storm windows and/or storm doors, replacement of windows and/or doors and replacement or extension of patios and decks until and unless plan and specicfications showing the nature, kind, shape, heaght, material, floor plans exterior color schemes, locations and approximate cost shall have been submitted to and approved in writing by the Board of Directors of the Association.
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UrellaH
(Pennsylvania)
Posts:15
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| 07/17/2008 12:54 PM |
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| I really do think it is discrimination, but how do I fight it? |
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DonnaS
(Tennessee)
Posts:2852
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| 07/17/2008 1:20 PM |
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Urella,
Forget the discrimination thing right now. Send us what your documents say about decks. There lies the answers. If they are not addressed in the CC&Rs, do you have Architectural guidelines or a committee? |
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GeraldT4
Posts:932
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| 07/17/2008 1:23 PM |
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| UrellaH - You fight it by first informing the board that you believe you are being discriminated against in their denial of your application, that your modification will benefit the entire community and why. See where that goes. What sticks with me is why the need to "grandfather" those that did modify. By doing so it suggests that they never received the proper approval that the declaration stipulates. Hmmmmm.... |
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GeraldT4
Posts:932
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| 07/17/2008 1:24 PM |
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| DonnaS - Urella may not have anything specific on the decks but her previous post tells us about modifications. : ) |
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UrellaH
(Pennsylvania)
Posts:15
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| 07/17/2008 4:26 PM |
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| DonnaS - How do I send you the documentation? |
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DonnaS
(Tennessee)
Posts:2852
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| 07/18/2008 11:57 AM |
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Urella,
Is it too long to post? The guys and gals here are so document savy and we have many sets of eyes to spot what we need to help you with. Otherwise if you need to send a long copy or doc, send it to my "buschmand@hotmail.com". I use that just for this work. Thanks |
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UrellaH
(Pennsylvania)
Posts:15
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| 07/18/2008 1:13 PM |
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| I am attaching the part about architechural control. Please let me know if you can't see it. |
Attachment: 171813430171.pdf
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JohnO6
(Georgia)
Posts:122
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| 07/18/2008 1:40 PM |
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So a few thoughts here:
1). Your documents stipulate that the first order of an ACC (if one was ever appointed by the BOD) was to establish standards by which application would be judged. Oddly, the same stipulation does not appear to apply to the BOD itself. Does an ACC exist? Have "standards" been established? If so, then how did your deck application measure up against the standards?
2). This whole "grandfathering" issue sounds suspiciously like some of the owners who added decks after they bought their homes didn't bother to even apply - just did it. Is that true? If so, this "grandfathering" is the BOD choosing not to deal with previous violations of the CCRs - much easier to "ignore" by "grandfathering".
3). Actually it's important to understand if the current BOD membership was in place when previous decks were erected (applied for or not). Many docs give credence to the fact that over time, changing BOD membership and changing community standards will result in differing approval/non-approval decisions for what appear to be similar architectural changes. Can't tell from the part of your docs that you posted if such credence is given in your docs. The reason that the tenure of the current BOD membership is important is that (despite the "immunity" paragraph contained in your docs) a BOD - or an ACC - cannot act in an "inconsistent, arbitrary, or capricious" manner. Such inconsistent behavior by a BOD or ACC has not fared well in case law.
Perhaps I've raised more questions than I've answered, but the whole learning process on this board is somewhat socratic. |
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UrellaH
(Pennsylvania)
Posts:15
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| 07/18/2008 5:38 PM |
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| Some of the decks were built when the homes were built, some were added I think without approval and the last two were added two years ago with approval.The president of the board told me that decks are an issue with the board because they all can't agree on approval. So, the way out is the grandfather thing and no more decks to be approved. |
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BruceF1
(Connecticut)
Posts:594
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| 07/18/2008 8:04 PM |
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Posted By UrellaH on 07/18/2008 5:38 PM
Some of the decks were built when the homes were built, some were added I think without approval and the last two were added two years ago with approval.The president of the board told me that decks are an issue with the board because they all can't agree on approval. So, the way out is the grandfather thing and no more decks to be approved.
They don't all have to agree. Only a majority should be needed. That's what voting is all about. Do they think every decision has to be unanimous? Why?
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MicheleD
(Kentucky)
Posts:1722
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| 07/18/2008 8:06 PM |
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With all due respect to you, since this is their chum bucket, but what a chickensh!t group of directors.
Can't "agree" on deck approvals, so just won't have *any*???
Holy cop-out, Batman!
I think it's time to help these poor addled souls move along to something they can handle, like bridge or bingo. . . |
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BruceF1
(Connecticut)
Posts:594
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| 07/18/2008 8:18 PM |
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John,
From your third observation, are you saying you think the "immunity" clause is unenforceable? Looks to me like it might be. It's always interesting how this stuff gets into documents to try to convince people not to sue for damages. |
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JohnO6
(Georgia)
Posts:122
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| 07/19/2008 6:49 AM |
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Bruce - I'm not really saying that the immunity clause is TOTALLY unenforceable, but I think it too has its limits. If the BOD acts consistently and fairly, then a simple application denial is not grounds for action vs the Board. In that case the immunity clause adds weight to the Board's decision and would probably stand up in court. However, if (as it "appears" in this case), the BOD is not acting as such, then I think the immunity clause can certainly be challenged and is probably unenforceable and perhaps irrelevant.
All should remember there is nothing that can prevent the filing of a suit .. .. actually getting is heard, or winning it are far different matters. |
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BruceF1
(Connecticut)
Posts:594
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| 07/19/2008 7:26 AM |
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John,
True. When I sold my business I told my lawyer that I wanted to be sure in the sales contract that I couldn't be held responsible if the business failed under the new owner. I told the lawyer I didn't want the new owner to be able to sue me. The lawyer replied, "You can't prevent anyone from suing you. All you can do is make it difficult for them to win." |
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PatR
(Florida)
Posts:136
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| 07/19/2008 10:53 AM |
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I would ask to see plans and docs of other decks in your community. If they can not come up with them, then something is fishy.
When you get to see the copy of the plans, follow them exactly, and they can not deny your request. Possibly, there was an ispection, you could call the inspector also. |
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