board going overboard on ARC denials

Started by CathyS3 • 15 replies • 2994 views

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CathyS3 (Texas)
Posts: 9

Posted:

Hi I live in Texas - My question is can the board make homeowners apply for things that they have had for several years (in some cases 6-7 years). Our statue of limitations in Texas is 4 years for just about everything.

We have one homeowner who put teal pots out in her front yard nobody cared until her neighbor got on the board and now is the ARC committee (our board will not set up a separate group of people to act as the ARC committee)so they are now wanting to sue her and they even changed a vote to unanimous (it was 2 for -1 against and two not present) on the color of pots you can put in your front yard.

Since this all this started with her they are now going through the neighborhood making everyone apply for things they have had for years and making them change things that were previously approved - all because she doesn't like it.

What can we do?

TimB4 (Tennessee)
Posts: 21,059

Posted:

I suspect that the reason why the Board is going after everyone is so there isn't a claim of selective enforcement.

For items that were previously approved, simply provide a copy of the approval letter.

For items you don't have an approval letter for, it becomes a I say, you say contest. If you know that the items will likely be approved, resubmit the paperwork. If you believe that the items won't be approved, there is no harm in asking.

As for what started all of this ruckus, it sounds like the two neighbors had conflicts in the past and now one has some authority over the other. I wish I could say it never happens, but the truth is that it does. It's sad when the rest of the Board refuses to stop these things.

The only way to correct this is to either recall the Board (or that one individual) or to not reelect them at the next election.

You might also try requesting a hearing before the Board and ask that in order to preserve/create an appeal process that there should be a separate Architectural Committee (perhaps your governing documents even require this) that is free of Board members. This way, any disagreements can be appealed to the Board itself. Then you should volunteer to serve on that committee (as this shows that you are willing to support your own suggestion).

CathyS3 (Texas)
Posts: 9

Posted:

Hi, I was on the board for 6 years before this year where the developer's son in law came in with enough proxies to vote in someone who would echo his decisions. I pushed for the committee for years and was always voted against - the two main people doing this want to even decide what you can do in your own back yard. I understand monitor ing of upkeep of the homes but telling people the board has to check references of builders before you can do anything is nuts. If you try to build it yourself they usually deny it even if it is what you do for a living.
To top things off none of our deed restrictions are on file so they are basing everything on general guidelines.

I did find out that a couple of board members are fed up and have resigned but I put up with that crap for so long I am afraid to get back into the mix - I would run the ARC committee though.

Oh our by laws state we have to have a committee. The current bod is changing the bylaws so they can forgo a vote to stay on longer.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By CathyS3 on 08/23/2013 5:12 AM

To top things off none of our deed restrictions are on file so they are basing everything on general guidelines.

Then how prey tell are they claiming the power to enforce anything?

Studies show that 5 out of 4 people have problems with fractions

CathyS3 (Texas)
Posts: 9

Posted:

they are going by we are the board and we can do this - I do know that because nothing is recorded with the county they really have no leg to stand on - especially when you go through the neighborhood and see other things that are more vibrant in people yards and they don't get harassed.

does anyone know how long you can have something up like window shades or pots in your yard before it becomes "grandfathered in" and they have no say about it unless it becomes broken or damaged and you have to replace them?

GlenL (Ohio)
Posts: 5,491

Posted:

Pardon me if I appear dense but if there are no deed restrictions recorded, how is there a HOA to begin with?

Studies show that 5 out of 4 people have problems with fractions

CathyS3 (Texas)
Posts: 9

Posted:

Nope your not dense - the bylaws gave general guidelines like yard maintenance and playforts not over a certain height and and building onto home without approval, but once you go into benches, window screens and such there is nothing mentioned - they did include guidelines but those were not recorded - when I was on the board I had the attorneys look into it and they said if push came to shove the board was at a loss -this board has forgotten all of this.

GlenL (Ohio)
Posts: 5,491

Posted:

OK I think we have a miscommunication problem. The deed restrictions or Covenants which must be recorded are the who, what and why of the HOA. The Articles of Incorporation form the corporation that is the HOA and must be filed with the Secretary of State's Office. The By-laws are the guidelines under which the corporation operates and do not need to be filed in every state. Some HOA Boards also have the power to set further rules on the care and maintenance of the property which also do not need to be filed.

I know of no case law for TX on the length of time between when a violation should have been noticed until it is no longer enforceable. In fact most CC&R's contain language that says basically no matter how many times something has been ignored or overlooked it is still enforceable.

As Tim said you can either attempt recall the person who you think is responsible in the hopes of replacing him with someone who will turn a blind eye to violations, if they are indeed violations. You can rally your neighbors to pressure the Board to set guidelines which everyone needs to follow. Keeping in mind a future Board could change them. Or you can rally your neighbors to amend the documents Covenants or By-laws, whichever is applicable to define what is allowable or not.

This also might help, it is the url for the TX HOA statutes:
http://www.statutes.legis.state.tx.us/SOTWDocs/PR/htm/PR.209.htm

Studies show that 5 out of 4 people have problems with fractions

KevinK7 (Florida)
Posts: 1,343

Posted:

If the covenants are not recorded then there really is no violation. You could have polka dot pots lining your driveway and the HOA or ARC can't do anything about it. Because they aren't recorded there is officially nothing to enforce. Yeah you could recall or vote them out but what's the point if there is no agreement between the property owners and the HOA?

CathyS3 (Texas)
Posts: 9

Posted:

Glen, I see what you are saying and I pulled out the documents and reread them - the declarations which are recorded do contain some deed restrictions that are general like no one can change the common areas, you can't build a fence around your house, it has to be kept up, and any patios and such have to be applied for, but it makes no reference to landscaping, yard decorations, pots even solar shades for windows.

So from what I understand if it is not listed in the declarations then they can't say anything about it, right?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kathy

Quote:

Posted By CathyS3 on 08/23/2013 1:41 PM
Glen, I see what you are saying and I pulled out the documents and reread them - the declarations which are recorded do contain some deed restrictions that are general like no one can change the common areas, you can't build a fence around your house, it has to be kept up, and any patios and such have to be applied for, but it makes no reference to landscaping, yard decorations, pots even solar shades for windows.

So from what I understand if it is not listed in the declarations then they can't say anything about it, right?

The above bold says it all. The BOD is simply using Rules and Regulations to clarify what they consider has to kept up.

I say the BOD is within their rights.

Beauty is in the eye of the beholder with the BOD being the present beholder.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By JohnC46 on 08/23/2013 2:41 PM
Kathy

But if the BoD is trying to enforce "kept up" standards by claiming ARC control, they are way off base. The C&Rs state only "patios and such" have to be applied for, the HOA may be out of luck. Not to mention the board either gave prior approval or had nothing to say about the "kept up" conditions for years (possibly even passing the statute of limitations), I would say the BoD needs to stop enforcement and work to rewrite the documents to clearly define neighborhood-wide standards, and if the neighborhood disagrees then those unhappy with colored pots can just sit on their ARC-approved porches and sulk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kev

Am I or are you confusing two chats?

One as to a patio being requested like others and being turned down or landscaping standards being set.

I do see a difference.

Maybe I have had to much to drink.......LOL

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By JohnC46 on 08/23/2013 5:05 PM
Kev

Am I or are you confusing two chats?

One as to a patio being requested like others and being turned down or landscaping standards being set.

I do see a difference.

Maybe I have had to much to drink.......LOL

I don't know.

The original post referenced pots. By your comments I assumed you were stating that the ARC was well within their rights to question potted plants. I was of the mindset that pots and patios were apples and oranges.

I'll leave it at that and go to bed.

CathyS3 (Texas)
Posts: 9

Posted:

I am not sure of the patios part either (I did read that in a different thread) - but the part that is recorded covers patios - what the BOD is going after is not covered or mentioned at all and that is pots, window screens and generic yard decorations that last two have been around for 6-7 yrs.

Our neighborhood is not bad looking just young and very dry - personally I liked the pots of different colors (I need to add these are not empty pots but ones with plants) it helps to find your home and make the whole place look inviting and not sparse. Our trees are just now starting to get near 12' tall so anything green really helps and with only 6 floor plans anything that makes a little difference between the homes adds so much.

This board probably doesn't have much longer they have been really good at upsetting about 75% of the homeowners - and when they start the swim team that no one wants that will be the last straw.

My main thing was trying to find out the statue of limitations as it affects HOAs and homeowner things. I always thought that if it was longer than four years they could not do anything about it.

Since they changed their interpretation of the bylaws to let themselves stay on four two more years all four in question will be up at the same time - so if we hang in there they will all be gone.

DaveD3 (Michigan)
Posts: 796

Posted:

How does a board change interpretation of bylaws to allow themselves longer terms??

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