SusanS9
(California)
Posts:56
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| 08/13/2010 3:19 AM |
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| If a former architectural committee approved a fence that the new committee under a new board finds violates city building code, what should be done to correct the situation if the fence is near completion? What if the new committee chooses to look the other way ("not on our watch"), not wanting to be the enforcer of corrective action? |
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SureshD
Posts:0
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| 08/13/2010 4:46 AM |
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| If anyone believes city codes are being violated then call the city to inspect. Given no code violations, once permission is given through PROPER channels and proceedures it will be difficult to stop if the approved party is uncooperative. |
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SusanW1
(Michigan)
Posts:5035
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| 08/13/2010 10:28 AM |
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Why are your fence code restrictions LESS than the city codes/
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SteveM9
(Massachusetts)
Posts:1442
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| 08/13/2010 1:22 PM |
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It didn't violate any of your HOA rules and was approved. The HOA's responsibility ends here.
Its violates city rules. This is between the homeowner and the city. Nothing to do with your HOA. Its not your fault the person didn't get a building permit to make the fence or follow city rules.
No action needs to be taken by the HOA. |
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MaryA1
Posts:0
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| 08/14/2010 8:37 AM |
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| Sorry, Steve, but I must disagree with you. First of all the city may not require a permit to build the fence. But secondly, and most importantly, the BOD should not have any rules that violate city code. It is their resp. to abide by city code, just as they must abide by State and Fed laws that apply to HOAs. Now, unlike State and Fed laws, HOA rules may be more restrictive than City code, but they cannot be in violation of it. |
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SteveM9
(Massachusetts)
Posts:1442
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| 08/14/2010 12:27 PM |
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But secondly, and most importantly, the BOD should not have any rules that violate city code.
True, but you don't know what really happened..........
Its possible, the HOA approved "a fence", period.
But then the homeowner built the fence 6 feet high when the city said it can only be 5 feet high. Its not up to the HOA to know or update CCR's for any new rule by city code enforcement. If the HOA approved a "fence" and the homeowner failed to lookup the city guideline on minimum fence construction, the HOA is not at fault. The homeowner is. |
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MaryA1
Posts:0
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| 08/14/2010 4:13 PM |
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Steve,
While it's true we may not know what really happened, we can only comment on what the OP has written. In this case, the OP stated the fence was approved, is now under construction and the new BOD can see that it is not being built to city code specs. This tells me that the HOA approved a fence in violation of the city code. If the fence was being built differently than it was approved that would be a different story.
The OP did not say how the fence violates city code; whether it's too high ot too close to the property line. But, if the city were to require the fence be rebuilt according to code, IMO, the HOA should pay the expense. As I said in my earlier response, the HOA cannot have a rule that violates city code. Since they made the rules and approved the request to build the fence they must foot the bill for their error. |
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JohnO6
(Georgia)
Posts:415
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| 08/14/2010 4:21 PM |
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| Mary - I'm with Steve on this one. The HOA approves the fence only to ITs standards not the other regulatory agencies. They should probably include a disclaimer that their approval only relates to HOA architectural standards which may or may not meet other regulations. The owner needs to take responsibility to ensure that any project they take on meets the requirements of any entity that can affect the ultimate approval. |
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SteveM9
(Massachusetts)
Posts:1442
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| 08/14/2010 5:29 PM |
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The HOA approves the fence only to ITs standards not the other regulatory agencies.
It would be similar to a house expansion. If a HOA approved a addition of a larger kitchen for a homeowner, the HOA responsibility stops there.
If they didn't do something to code like plumbing, electrical, building standards, etc, its not the HOA problem. That is between the homeowner and the city. |
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SureshD
Posts:0
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| 08/15/2010 5:12 AM |
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If there are building/const. codes at play here the governing body (city, county, parrish, etc.) would require a permit to be issued.
When the permit is applied for the fence design would have to be submitted and then reviewed, approved, or rejected thus requiring modification prior to approval. Once the permit is issued an inspection will be required to "close" the permit.
If the HOA approved the design and no permits, codes, or inspections are at play then it is over.
Otherwise call the local governing body inquire about the requirements and go from there. If there is any violations then it will be taken care of by them. |
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SteveM9
(Massachusetts)
Posts:1442
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| 08/15/2010 5:41 AM |
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would require a permit to be issued.
Not always. In my city you don't need a building permit for a fence, but you still need to follow the fence restrictions the city has. |
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MaryA1
Posts:0
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| 08/15/2010 8:11 AM |
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John,
Well if you are saying the HOA can enact rules that violate city code then you are wrong. While its true the HOA makes approval based upon their standards, however those standards cannot (or should not) be in violation of the city code. That would be the same as having restrictions that violate state or fed law and we all know the state or fed law would trump them. City code is no different. I agree the owner must take some resp however if the HOA approves something that violates city code and the owner builds, IMO, the HOA is at fault if the owner is penalized by the city.
Bottom line: It's the resp of the board members to know what the city codes and state and fed laws are that apply to HOAs. |
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SteveM9
(Massachusetts)
Posts:1442
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| 08/15/2010 1:15 PM |
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Bottom line: It's the resp of the board members to know what the city codes and state and fed laws are that apply to HOAs.
Nope. That's why your tax dollars pay for city code enforcement officer maybe several. It has nothing to do with your board members. Its crazy to expect a board member to know everything a code enforcement officer knows. |
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MaryA1
Posts:0
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| 08/15/2010 1:22 PM |
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Steve,
They don't have to know ALL the city codes! When the HOA is making rules it's their job to know if those rules violate the law -- any law, including city code. If they aren't sure they would be wise to contact an attorney.
I'm not going to discuss this with you any further. We'll just have to agree to disagree although I know I'm right about this. |
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BarbaraP3
(Maryland)
Posts:86
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| 08/15/2010 5:53 PM |
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Hi all,
Our attorney advised us to include the following on our ARC/ECC forms:
NOTICE
By signing below, I understand that approval of my proposed improvement by XYZ on any ECC form does not mean that my improvement meets the requirements of Worcester County Code. It only means that my improvement meets the ECC GUIDELINES for XYZ.
I understand that I, the property owner, am solely responsible for contacting the County to obtain any zoning approval and/or building permit that may be required for my improvement. I also understand that if my project requires a permit from Worcester County, a copy of the required permit will be submitted to the office BEFORE any work is started. Applicant certifies that improvement will not violate any setbacks, laws, ordinances or statutes, nor encroach upon any easements or rights-of-way-whatsoever.
He said that this will NOT hold the association responsible for any county violations.
Some of our guidelines are more restrictive than the county code....but not more leinent.
Any comments regarging attorney advise is appreciated.
Thanks,
Barb |
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SteveM9
(Massachusetts)
Posts:1442
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| 08/16/2010 6:40 AM |
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They don't have to know ALL the city codes! When the HOA is making rules it's their job to know if those rules violate the law -- any law, including city code.
You seem to be contradicting yourself. Either your HOA is doing it all wrong, or you just don't understand the what service a code enforcement officer provides. |
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MaryA1
Posts:0
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| 08/16/2010 6:50 AM |
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Barbara,
The notice your attorney has suggested be included on the ARC approval should get the HOA off the hook should something be built that is in violation of co. code. However, although the HOA restrictions can be more restrictive, the BOD should be careful not to allow something that is in violation of co. code. |
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MaryA1
Posts:0
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| 08/16/2010 6:56 AM |
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Steve,
The city/co has a myriad of different code requirements. The HOA BOD need only be famaliar with those that apply to any HOA restrictions, i.e., building set-backs, parking, etc. I am not proposing that the BOD be familiar with every code on the city books -- that would be ridiculous!
I am well aware of what the job of a code compliance officer is. I'm sure one would be very happy to speak to a board member to ensure that an HOA restriction is not in violation of city/co code.
I think it's you who does not understand the obligations of an HOA board. Do you also propose that the BOD can enact any restriction that may violate state or fed law and that it's up to the State or the Feds to catch it? I think not! So why is city/co code any different? |
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SureshD
Posts:0
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| 08/16/2010 9:45 AM |
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No HOA, ARC, etc. is responsible for interpreting or enforcing city, county, or state bldg. codes or (likely capable of) making construction engineering decisions.
We all know the committees are comprised of layman volunteers whos primary resp., generally speaking, is to maintain harmony or continuity in the appearance of the community.
Thus the (appearance) specs. are very high level such as color , material, or height, etc. not what size nails should be used or the like.
Enough bickering about this and that already... really.
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MaryA1
Posts:0
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| 08/16/2010 2:52 PM |
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Suresh,
Our discussion has NOT been about enforcing city/co code or making construction engineering decisions! But, I do agree there has been enough discussion on the topic. |
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