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Subject: Are Homeowners required to correct violations when new standards are adopted or are they grandfathered?
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Author Messages
CarriM
(Utah)

Posts:3


05/12/2020 2:10 PM  
Can an HOA enforce newly adopted standards on homeowners who are now in violation? For example, window/doors/lighting for a condo community which previously did not have standards and owners where doing whatever they wanted because there was no real governance.
GeorgeS21
(Florida)

Posts:2681


05/12/2020 3:41 PM  
What do your governing docs say?

What does your board say?

What does the management company say?

What does the COA’s attorney say?
CarriM
(Utah)

Posts:3


05/12/2020 3:56 PM  
There is no mention in governing documents.

Management company has failed to take a position.

I am part of a new board and there has not been a formal request to the HOA's attorney.

The governing documents are 30+ years old withe various amendments over the years. Honestly starting over would be my advice if we didn't already have so many financial needs to address. Over the past 5 years, I have been a member of ARC and we have recommended/approved standards for windows, doors, outdoor lighting fixtures, decking, etc... and these have been used to address remodel requests. Unfortunately, historically many changes were done with no oversight or standards. While we are trying to move forward, many applicants are questioning why they are being restricted when their neighbors are not in compliance.

Some feel homeowners are grandfathered in for anything before a standard was in place, but there is a quite a bit of turnover going on in the community and we would like things to be brought up to standard.

Has anyone had any experience with a similar situation. We are located in Utah.

Thanks in advance.
KerryL1
(California)

Posts:7217


05/12/2020 6:47 PM  
I think you need advice from your HOA attorney. You need help in wording & and explaining the new requirements and in explaining what grandfathering is permissible. I do know you should make sure that any non-conforming items that is replaced must be replaced with what his new approved.

I'm thinking that "it depends." Some owners' "improvements" are so permanent that might would be a big hassle & expense?

But, it seems to me, that others might be flimsy and easily dismantled and replaced with approved materials.

We're a condo building too and doors viewed from the exterior all need to be the same as well as balcony lights and surface of balconies. O

Are your decks exclusive use (or rlimited use) common areas? Or do they belong solely to the owners? That should be in your CC&Rs.

SheilaJ1
(South Carolina)

Posts:164


05/13/2020 5:47 AM  
No you cannot enforce the new standard unless the original documents specifically state the standard and authorize change at the owners or the HOA’s expense.. You may want to check if the documents have a limit, it could be 20 years.

You waived your right to enforce when you failed to enforce the standard from the beginning for the past 5 years you’ve been on the committee.

One option would be to use the HOA funds and pay for the standard upgrade, someone who knows about condos could answer this.

And you don’t make amendments to governing documents unless you have a majority membership vote which is very difficult or unless under declarant control or the old documents authorize it.



CathyA3
(Ohio)

Posts:953


05/13/2020 6:35 AM  
I agree with others' comments. Previously unenforced covenants can become unenforceable due to the length of time that they were ignored. And there is the fairness element - new homeowners buy their homes in good faith, and it seems unjust to hold them accountable for a violation that was created by a previous owner.

(Regarding this unfairness business, though: When we were dealing with a similar issue in our community, our attorney said that all owners are legally obligated to obey the governing documents, and it's on them if they fail to understand what they're buying. So the association is within its rights to enforce. However, as a board member I was never comfortable with this. And as a practical matter, you can expect push back. A board has to weigh the positives of enforcing against the negatives such the ill will created by it. I view this as a "pick your battles" thing - the rule or covenant has to be important enough to justify the negatives. Generally I consider cosmetic issues as less important unless they seriously damage a community's curb appeal since that can discourage resales and damage property values.)

One common way of dealing with the more costly items is to grandfather whatever it is, but with the requirement that the violation be brought into compliance when the item is replaced. This approach has much to recommend it. The board is doing its job but isn't being unnecessarily harsh or high-handed. The homeowners are being put on notice about the violation. And the community as a whole is much more likely to be cooperative.

That said, there are violations that are serious enough to require prompt action. An example of this is homeowners encroaching on common areas: for example, putting up a fence that encloses land that belongs to the HOA and not the owner. The fence has to come down even if a previous owner put it up, because it creates legal and liability issues for the HOA.
ShirleyC
(California)

Posts:111


05/13/2020 6:55 AM  
Our attorneys told us we need to change our cc&r's every 15 years or so to comply with new laws,


Also, are condo exterior walls, Windows etc usually maintained by the association?

KerryL1
(California)

Posts:7217


05/13/2020 8:02 AM  
Your CC&Rs, Shirley will tell you who maintains the windows. Sometime they are vague though. If so, you need your HOA's attorney's advice & interpretation.

Not sure what you mean by "exterior walls." The whole outer concrete or wood walls that surround your condo building? The exterior walls that are within deck areas??
AugustinD


Posts:3364


05/13/2020 8:39 AM  
Posted By CathyA3 on 05/13/2020 6:35 AM
One common way of dealing with the more costly items is to grandfather whatever it is, but with the requirement that the violation be brought into compliance when the item is replaced. This approach has much to recommend it. The board is doing its job but isn't being unnecessarily harsh or high-handed. The homeowners are being put on notice about the violation. And the community as a whole is much more likely to be cooperative.
I believe this is legally the correct approach. This is particularly so when the new standard would require significant expenditure by the member who is compliant with the old standard, like KerryL1 indicated. CarriM's HOA would likely lose in court in such an instance.

Posted By CathyA3 on 05/13/2020 6:35 AM
That said, there are violations that are serious enough to require prompt action. An example of this is homeowners encroaching on common areas: for example, putting up a fence that encloses land that belongs to the HOA and not the owner. The fence has to come down even if a previous owner put it up, because it creates legal and liability issues for the HOA.
I agree. Real estate encroachment issues are an entirely different legal issue.
CathyA3
(Ohio)

Posts:953


05/13/2020 9:47 AM  
Posted By ShirleyC on 05/13/2020 6:55 AM
Our attorneys told us we need to change our cc&r's every 15 years or so to comply with new laws,


Also, are condo exterior walls, Windows etc usually maintained by the association?





Maintenance responsibilities are spelled out in your CC&Rs. There will be sections that define things such as "unit", "common elements", and "limited or exclusive use common elements". There will also be sections that spell out the rights and obligations of owners and the association. You'll need to read all of it, and watch out for wording like "except as specified elsewhere".

Usually the association maintains exterior walls, but you have to read your documents to know if this includes framing and other things inside walls. For windows it depends if your CC&Rs define them as part of the unit or not. In my community, owners are required to maintain, repair and replace their windows and exterior doors, but this could well be different elsewhere depending on the structure of the buildings.

As for updating your CC&Rs, that can be fairly easy depending on how much of an overhaul is needed. We had our attorney draft an amendment that brought us into compliance with the most recent state statute, and the board voted to approve the amendment at the next board meeting. NOTE: the membership does not need to approve an amendment whose sole function is to bring the CC&Rs into compliance - even if they were unanimously opposed, they have no choice about obeying the most current state laws since they supersede the association's governing docs. However, if your community is older, your CC&Rs may be pretty out of date in general and may need to be re-written. That means lots of billable hours for the attorney.
TimB4
(Virginia)

Posts:16778


05/14/2020 1:15 AM  
Carri,

When you say that members did what they wanted due to lack of governance, does that mean that they did or did not request approval from the board prior to the changes?


Keep in mind that standards/guidelines are not enforceable. They are simply a standard for an approving authority to use in approving/disapproving requests for exterior changes.

If a member made a change that does not comply with the standards/guidelines but the member requested the change and the Association approved the change, then the member could bring legal action against the Association to recoup damages (cost of removing, cost of new item, cost of installing)for having to make the change again.

However, if a member made a change that does not comply with the standards/guidelines and the member never requested and received approval for the change, then the member is likely in violation of the covenants. This is because most covenants require prior approval from the association to make any exterior changes. The Association would then be bringing action against the member for failure to comply with the covenants by not obtaining prior approval.
SheilaJ1
(South Carolina)

Posts:164


05/14/2020 5:34 AM  
I believe failure to enforce for that many years trumps any argument about pre approval, the HOA had their chance to send a violation along with an approval application, that time is long gone, hence barred. The HOA must give a chance for the owner to get approval, after this many years, no way, I’m certain the covenants would state that the HOA can enforce anytime even months after but years of lack of enforcement would be tough.

Had a similar issue, attorney first stated yes HOA can enforce, HOA dragged it’s feet, a year or two passed, then attorney stated it’s latched, HOA could not enforce. Board backed down.
GeorgeS21
(Florida)

Posts:2681


05/14/2020 7:19 AM  
Sheila,

I think enforceability would vary by state, and relate, in part, to the governing docs ... and by judge, even.
JohnC46
(South Carolina)

Posts:9461


05/14/2020 8:08 AM  
Posted By ShirleyC on 05/13/2020 6:55 AM
Our attorneys told us we need to change our cc&r's every 15 years or so to comply with new laws,


Also, are condo exterior walls, Windows etc usually maintained by the association?





Shirley

Of course an attorney would say that as he will be paid to do so. Things in Covenants/Bylaws that are not legal and/or no longer applicable can just be ignored.
KellyM3
(North Carolina)

Posts:1509


05/14/2020 8:35 AM  
Previously approved projects should remain approved since the HOA approved them. Your new board of directors is the same board of directors that issued the approval.
CarriM
(Utah)

Posts:3


05/14/2020 10:06 AM  
Firstly, thank you for all of the replies and discussion.

We are a condominium/townhome community in Park City, UT which was developed in the late 70's. Most of our governing documents are original with minimal amendments in the 80's & 90's. Our property values have soared in the past 10 years and the demographics of the community have changed from primarily local residents to the majority of homeowners being out of state and utilizing their units as second homes or investment properties.

To clear a few things up ... the standards for windows, doors, hot tubs, etc... were researched and recommended to the Board by ARC but ultimately the Board was the approving body. While some of the standards are for items which are the HOA's responsibility, many homeowners realize the HOA does not have the available funds without a special assessment. Our governing documents make this virtually impossible to pass because the required owner approval and difficulty engaging such a diverse mix of owners.

For example, the Board approved a front door standard last summer so homeowners can replace their front door if they choose to do so at their own expense. Unfortunately prior to the standard, homeowners replaced doors with whatever door they wanted and did not consult with Management Company or Board.

So in this example, our governing documents have always stated exterior doors are the responsibility of the HOA; however, a standard was never specifically stated. My question is can the HOA require the doors replaced by owners prior to the standard be changed now that the standard is in place?

In my humble opinion the doors were NEVER the homeowners to change without HOA approval. We have tightened up our procedures requiring any modifications, even those utilizing standards, submit a remodel application and deposit to the Property Management Company. But what to do about doors which are neither the HOA previous (unwritten standard) nor the new standard.

I understand that an attorney's opinion will probably be necessary before we attempt enforcement, but I wondered if anyone had any similar experience(s).

Doors are not terribly expensive ($500-$1000) or difficult to replace and the visual continuity of the community is really disrupted by the mix of architectural style and color (paint vs wood grain).

Thanks in advance for everyone's time and advice.
TimB4
(Virginia)

Posts:16778


05/14/2020 5:36 PM  
Posted By CarriM on 05/14/2020 10:06 AM

So in this example, our governing documents have always stated exterior doors are the responsibility of the HOA;




In this example, per the governing documents, the HOA should pay to replace the doors if they desire.

Per the governing documents, they are not the responsibility of the homeowner and the homeowner should not bear any expense on the doors. The fact that past boards allowed homeowners to replace doors was in error and contrary to the governing documents.

If I'm the owner, I'd point to the covenants and tell the board the HOA has to pay to replace and have them obtain a legal opinion if they disagree or bring legal action so a court can rule on the language.

Mind you, this is based only on what you provided. A good read of the documents may have me change my opinion.
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