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Subject: Architectural Review Questions
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DeidreB
(Virginia)

Posts:31


02/07/2020 8:40 AM  
Hello all,

Our somewhat new, small single family home community is still forming it's governing processes. We have no management company. Our HOA documents are fairly generic meaning many other communities like ours appear to have the same or very similar documents. They include architectural review as a requirement for any improvement, upgrade, or modification to any home or lot.

A neighbor has recently submitted a request to add brick overlay to his lead sidewalk. The sidewalk goes from his garage/driveway to the front porch, not the public sidewalk. Other homes in the neighborhood have either cement or stone sidewalks based on their original purchase order. The gentleman who wants to add brick has a brick home so this makes sense and it's not really a structure so I am not sure this even rises to the level of architectural review but he did turn in the form. However he has conveniently left off some requested information on the request form: name and point of contact of contractor and a lot of other contractor info about licensing and insurance, etc. He also did not provide a technical drawing or plat which is required by the form. He said he is adding a layer of brick and doesnt have the skill to do a tech drawing and the contractor is a brick layer and doesnt do drawings. He did provide photos on the form of what he is planning to do using photos of other brick sidewalks and his sidewalk. The form he submitted was used by the builder while they were the HOA. I could tell the homeowner felt like the form requested more info than is really required and perhaps is either making subtly that point or perhaps he is hiring a contractor that is unlicensed.

The board doesn't want to act on the request until all the lines are filled in and a drawing is provided. I say they can because the choice of contractor is ultimately a homeowner's prerogative and employing them is his responsibility if anything goes wrong on his private property. The declaration does not say anything about HO approval of contractors other than that the board's approval does not constitute approval or compliance with governmental approval and permits.

I think the board can approve without the contractor info or a plat. The gentleman has shown us what he wants to do and is requesting our approval. We do not have standards for sidewalks as there is already a variety and we have no engineers on the board. This will enhance the appearance of his home which should help home values indirectly for the rest.

Do any of you have recommendations for this? In past HOAs I have been in, this would have been approved promptly and they would have appreciated his willingness to submit a request.

Thanks!
CD6
(Texas)

Posts:11


02/07/2020 8:59 AM  
As you say you are still forming, I would try and get
a three or five person ACC formed to process such requests.
I would recommend one BOD member be on the ACC as liaison.
We would ask for the omitted spaces on the application
to be filled if possible.
SheliaH
(Indiana)

Posts:2947


02/07/2020 11:34 AM  
If he's left off information you need to make an informed decision, send him a letter stating what you need and until he provides it, you can't approve his request. Give him a deadline to provide the information and offer the opportunity to make his case in person.

Remind him that until a decision is made and/or he's exhausted all appeal rights, he may not begin construction. If he does, the association will take legal action against him.
WalterH4
(Indiana)

Posts:38


02/07/2020 11:39 AM  
My personal opinion is that for the most part, the concept of ARC (Architectural Review Committee) is fairly absurd, for all things except the development stage to control the types of homes built. It's absurd because it means that you have 3 random board members behaving like God, when in most HOA's those three people are no more qualified to determine if something it appropriate than the person making the request. And often, those 3 board members are just the ones who got "suckered into it". Boards that are run by zealots often result in commotion, because those board members are there because they enjoy the power, too much. What I am getting at here is that I find it most often inappropriate to have all neighbors bow to the opinions of these 3 random unqualified neighbors.

I lived in a lovely HOA 15 years ago where the board members declared "we're not going to be THAT kind of HOA", and no one submitted forms, and everything was friendly and fine. That is my preference for a HOA; they are there only if someone actually does something that makes the majority upset. Otherwise live and let live for the most part. For that HOA, they only took 1 action in 10 years, which was to make someone remove a chicken-wire fence, because it was expressly prohibited by the restrictions.

I would favor leniency from the get-go; it's the better way to go for creating a friendly neighborhood, freer from gossip and judgement. This then sets the tone for future boards.

But that's a personal decision for the board to make. What do you want as the personality for your neighborhood.

Most importantly, note that in all cases that I'm aware of, you are not obligated to enforce everything stated in your ARC process. You are permitted to be lenient wherever you decide it is appropriate, so long as you are reasonably consistent without showing favoritism. You are allowed to be strict, but this is only done by your own choice. You are free to choose leniency as well, which is what I personally would favor.


DeidreB
(Virginia)

Posts:31


02/07/2020 12:25 PM  
Thank you to all for your replies.

Walter your reply sums up my thoughts on this almost perfectly. It also closely matches what I told the other board and committee members. I do not know the value of making this homeowner give up his personal contractor info. We should not be overseeing the work and it's his property. If he says to heck with it and does the work anyway then our minuscule budget and tight knit social environment has to deal with him proceeding with work that is an improvement but not allowed over a bureaucratic reason that is not even encapsulated in the CCR's or By Laws. What then? Or worse, what if he says to heck with it and decides not to do it? I've seen that in other HOA's as well; the paperwork becomes arduous and they just pass on it until later and later never comes. And then many properties are rarely if ever improved.

Thank you all again. It's a human challenge!




JohnC46
(South Carolina)

Posts:9121


02/07/2020 2:15 PM  
Tell him you need a better "picture" of the work to be done then hold him to what he showed you, that is if no one objects.
GeorgeS21
(Florida)

Posts:2032


02/07/2020 5:17 PM  
Walter,

Your approach is a bit confusing ... are you enforcing and working per your governing docs, or plucking and choosing?
GeorgeS21
(Florida)

Posts:2032


02/07/2020 6:16 PM  
Picking and choosing.
WalterH4
(Indiana)

Posts:38


02/07/2020 6:59 PM  
Posted By GeorgeS21 on 02/07/2020 5:17 PM
Walter, Your approach is a bit confusing ... are you enforcing and working per your governing docs, or plucking and choosing?

Of course, I'm proposing "picking and choosing", provided that her docs allow for this.

For example, our HOA from the 1990's says "no trucks in driveways" and doesn't exempt pick-up trucks. It also declares "no trashcans in plain sight". By right of our Declaration, which gives us 100% Right of Non-Enforcement, which most of these docs do, then it's a reasonable thing to do. The covenants represent the maximum amount of things you can enforce, but allows for most boards to back off from this, usually as a result of popular opinion.

Our docs also don't allow for white vinyl privacy fences, but only wooden fences; yet the white vinyl fences cost double and last a lot longer and generally look nicer. So guess what? The board chose not to enforce, and no one ever questioned it. We also have a wrought iron fence that no one questions (also not permitted per our covenants).

I don't get this trend of negative connotation attached to "picking and choosing" when it comes to HOA covenant enforcement. Most governing docs are written to permit it, and IMO, it's a very reasonable approach for many HOAs.

Our "Right of Non-Enforcement" clause looks like this:
"provided, however, that neither Developer, any Owner nor the Association shall be liable for damages of any kind to any person for failing to enforce any such covenants, conditions or restrictions."

Do your documents have something like that in them? For us, it is the last sentence of the "Right of Enforcement" clause.

When amendments to remove restrictions fail to pass, yet the motion had majority support, attorneys around here generally just recommend "just don't enforce it", and then after several years, it leads to abandonment and becomes as if the restriction removal was effectively passed. That's how it reasonably goes for many HOAs.
CathyA3
(Ohio)

Posts:737


02/08/2020 4:53 AM  
Of course "picking and choosing" is often referred to as "selective enforcement". It's all fun and games until somebody does something really ridiculous, everybody gets upset, the board tries to enforce whatever part of the governing docs were just violated, the bad actor sues, and the HOA loses in court after spending a bunch of everybody's money.

Frankly I thought "plucking and choosing" summed it up better... :-)
WalterH4
(Indiana)

Posts:38


02/08/2020 10:48 AM  
Posted By CathyA3 on 02/08/2020 4:53 AM
Of course "picking and choosing" is often referred to as "selective enforcement". It's all fun and games until somebody does something really ridiculous, everybody gets upset, the board tries to enforce whatever part of the governing docs were just violated, the bad actor sues, and the HOA loses in court after spending a bunch of everybody's money.

Frankly I thought "plucking and choosing" summed it up better... :-)

When someone does something "really ridiculous" as you have said here, then the board takes action, by definition they aren't enforcing something that wasn't enforced before.

For example, the ARC change process isn't followed for 95% of things done in our HOA. People just do what they want, in general. But if someone painted their whole house bright neon green, I would expect that the HOA can still take action against this person and win, unless others in the neighborhood had likewise painted their whole house bright neon colors without being challenged, and this has gone on for a while.

I think the issue you stated here would only happen if the offense was very similar to other offenses. For example, allowing someone to plant a shrub without approval, doesn't then nullify the HOA's ability to take action against someone who painted their whole house neon green, or etc. That would be absurd.

The tone of your note seems to me like fear mongering, in favor of scaring a board into believing that "selective enforcement" is a dangerous thing (i.e. never a good idea). Selective enforcement is mostly only dangerous if you stop enforcing a specific thing that later you might want to start enforcing again. Otherwise, it's a reasonable way to manage a HOA, and is superior to enforcing things that the majority simply don't want to have enforced.
GenoS
(Florida)

Posts:3545


02/08/2020 2:25 PM  
Another nutter.
JohnC46
(South Carolina)

Posts:9121


02/08/2020 2:40 PM  
Walter

I understand where you are coming from but I disagree. Selective enforcement is often kicked around out here and the problem is what is one's interpretation of it? Well it is not the BOD's interpretation that matters. What matters is one or two "believing" you are selectively enforcing and hauling your a$$ into court. From what you have said, I believe your loosey goosey attitude could drag your association in this direction.
CathyA3
(Ohio)

Posts:737


02/08/2020 3:05 PM  
Our association's attorney states flat out: avoid selective enforcement. The attorney's goal is to keep us out of court. He's seen it all and has plenty of horror stories to tell, so it would be foolish to ignore his advice.
WalterH4
(Indiana)

Posts:38


02/09/2020 1:06 PM  
Posted By CathyA3 on 02/08/2020 3:05 PM
Our association's attorney states flat out: avoid selective enforcement. The attorney's goal is to keep us out of court. He's seen it all and has plenty of horror stories to tell, so it would be foolish to ignore his advice.

I'm guessing there is considerable state-to-state variation in how this is treated. In Indiana, selective-enforcement is recommended by our attorney when an unpopular covenant hasn't yet been removed by amendment.

For example, many covenants here say "no trucks in the driveway" and does not exempt pick-up trucks from this restriction. Should we sue folks for their pick-up trucks, or just ignore this restriction. I'd be surprised to find a judge anywhere in the USA that would say "since you aren't suing against pick-up trucks, you can't enforce the no sheds clause". That just doesn't make sense.

Does your declaration not declare indemnity against accusations of selective enforcement? All the ones I've seen here in Indiana have this clause.

I would be much more worried about the opposite horror story where "all covenants are enforced no matter what" and then having many neighbors no longer able to park their pick-up trucks in the driveway. That's just not how we do it here in Indiana. As I am center-minded, I've always considered Indiana bass-ackwards in much of it's thinking; but as I read more here on HOA Talk, I'm starting to think Indiana is one of the more sensible places to live.
WalterH4
(Indiana)

Posts:38


02/09/2020 1:10 PM  
Our Declaration has a clause that reads like this:
"neither Developer, any Owner nor the Association shall be liable for damages of any kind to any person for failing to enforce any such covenants, conditions or restrictions."

This declares no liability for a board or HOA that practices selective enforcement. It's in our contract that you sign as you buy a home. All HOA members have agreed to never sue anyone for non-enforcement. And the courts respect it.

Do other states really not have this type of clause in their governing docs?
CathyA3
(Ohio)

Posts:737


02/10/2020 7:02 AM  
More on selective enforcement.... Legalese Alert!

My Declaration says this:

Waiver: No covenants, restrictions, conditions, obligations or provisions contained in this Declaration shall be deemed to have been abrogated, or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.

Enforcement of Provisions: In addition to any other remedies provided in this Declaration, the Association, Declarant, Developer, or any other Unit Owner or Owners shall have the right to enforce, by any proceedings at law or in equity, all liens and charges now and hereinafter imposed by or through the provisions of this Declaration, the Association's Articles of Incorporation, By-Laws, of any rules or regulations promulgated by the Association, or as provided by the Ohio Revised Code Section 5311.19.

(Side note: fines are considered assessments and can be the basis for a lien.)

And under Indemnification of Trustees, Officers and Employees:

The Corporation shall indemnify any and every trustee, officer or employee.... provided a determination is made by the trustees in the manner set forth in Ohio Revised Code Section 1702.12(E)(l) to the effect (a) that such trustee, officer or employee was not, and has not been adjudicated to have been, negligent or guilty of misconduct in the performance of this duty to the corporation of which he is a trustee, officer or employee, (b) that he acted in good faith in what he reasonably believed to be the best interest of such corporation, and (c) that, in any matter the subject of criminal action, suit or proceeding, he had no reasonable cause to believe that his conduct was unlawful.

Legalese ends here.

My comments:

It's questionable whether we'd be indemnified for failure to enforce our restrictions, because you can make a good argument that such failure can be considered negligence. Our By-Laws list under Duties (of the Trustees) "Cause the restrictions created by the Declaration to be enforced." Period, end of sentence, no caveats or wiggle room.

The only time it makes sense to me is if you have an unenforceable restriction or one that a sizeable portion of the community wants to be removed ***and*** you have begun the process of amending your Declaration to replace or remove said restriction.

Finally, as JohnC46 mentioned earlier, what really matters is what the owners think is going on and if someone is willing to go to court over the failure to enforce. The board may (or may not) be indemnified, but the association will still incur legal expenses that it may (or may not) be able to pass to the owner *if* the owner loses in court.

Not a risk that I'd be willing to take.
WalterH4
(Indiana)

Posts:38


02/10/2020 7:56 AM  
CathyA3 - thanks for sharing that. Our "Right of Enforcement" clause looks similar to yours, BUT is then suffixed with the "Right of Non-Enforcement" clause which not only indemnifies the board, but also the HOA itself. There can be no claim of damages brought against either HOA or board based upon the non-enforcement of covenants.

Does your Declaration not also have this clause that mine has? If not, then I would agree with you that there is a danger here. For us, there is not.

However, there is danger for those who violate these non-enforced covenants. Conceptually, a board in the future can decide to start enforcing the covenants again, even for violations that were constructed years ago. This is where it gets muddy; the courts may or may not side with the board, due to potential claims of "abandonment", etc. But there is nothing firm to protect the violators from a future board.

However, for us, the board and HOA itself are viewed as faultless for their choices on selective-enforcement of most covenants. IMO, this just makes sense, so that when trying to recruit new suckers to be on the board, they can accept the position without fear of liability due to negligence in most matters.
CathyA3
(Ohio)

Posts:737


02/10/2020 8:40 AM  
Posted By WalterH4 on 02/10/2020 7:56 AM

Does your Declaration not also have this clause that mine has? If not, then I would agree with you that there is a danger here. For us, there is not.





No, my Declaration does not have this clause.
WalterH4
(Indiana)

Posts:38


02/10/2020 10:08 AM  
Posted By CathyA3 on 02/10/2020 8:40 AM

No, my Declaration does not have this clause.

Well mark up another win for Indiana being smart. Our boiler plates here include this.

I'm starting to see the reason that many here are more conservative/strict in their views that I. The laws/rules are different between states.
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