Decks

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?

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.

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? ;)

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.

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?

DonnaS - Urella may not have anything specific on the decks but her previous post tells us about modifications. : )

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 "[email protected]". I use that just for this work. Thanks

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.

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?

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.

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."