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Subject: Need Input on Building materials
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JenniferB14
(Colorado)

Posts:127


07/22/2021 12:42 PM  
Our building materials covenant states:

"In order to assure the design continuity of the project, all residences and other buildings shall be constructed of wood, stone and/or masonry stucco and shall be colonial, contemporary or rustic in design style"

Recently, during a court ruling on a different issue, the courts ruled "In reviewing the Declaration thoroughly, there are very few area of flexibility or discretion reserved to the various governing bodies." The judge goes on to state "Therefore at the most basic level, the court is unable to identify where the Declaration provides for any discretion to the HOA, its executive board, the ARC or any other committee in the application of (section) 9 of the Declaration."

This building materials section is in fact part of section 9 and the ARC has gone on to historically allow brick homes, hardie board (cement) siding and vinyl siding but has prohibited steel.

I would like to get some input on the perception of this covenant- is it clear on its face or could there be some components that are arbitrary?

For instance it doesn't state the building must solely contain wood stucco or stone in its entirety and it certainly doesn't prohibit any other building materials. Should other siding materials "look" like stone stucco or wood is that the intent of the covenant?

What is the reason.... we want steel siding in board and batten for our barn that looks exactly like hardie board/wood and has wood grain and is even two tone in color to further look like wood.
AugustinD


Posts:1585


07/22/2021 12:52 PM  
Posted By JenniferB14 on 07/22/2021 12:42 PM
Our building materials covenant states:

"In order to assure the design continuity of the project, all residences and other buildings shall be constructed of wood, stone and/or masonry stucco and shall be colonial, contemporary or rustic in design style"
.
.
.
For instance it doesn't state the building must solely contain wood stucco or stone in its entirety and it certainly doesn't prohibit any other building materials.
In my opinion, you are trying to twist the words in the covenants. The phrase "shall be constructed of wood, stone and/or masonry stucco" implicitly excludes steel.

Would a court say that, "Yeahbut technology changes things. This covenant is outdated." Maybe. "The law is what the court says tomorrow."

As for other homes that are cement or brick, you might be able to argue selective enforcement. I am not sure I would say that either brick or cement are "stone and/or masonry stucco."

How much in attorney fees are you willing to pay to maybe get your steel siding? Might it be better to lobby a few years for an amendment to the covenants?
JenniferB14
(Colorado)

Posts:127


07/22/2021 1:00 PM  
And if steel is implicitly prohibited then so would brick, vinyl or cement products making the HOA decisions arbitrary.

However there is case law in CO where the lack of prohibiting something in a covenant therefore allowed it. My attorney has stated the same... either the covenant implicitly prohibits other building materials, OR the intent of the covenant to "preserve the continuity of the project" would mean any product that looks like stone, wood or stucco as well.

He feels there are two ways to look at this, and I agree with that. I just wonder what the most reasonable determination is and I'm not sure I have a gut on it.
JenniferB14
(Colorado)

Posts:127


07/22/2021 1:02 PM  
oh, and our building is proposed to have about 50% exterior siding of wood
CarissaM


Posts:0


07/22/2021 1:19 PM  
Posted By JenniferB14 on 07/22/2021 1:00 PM
And if steel is implicitly prohibited then so would brick, vinyl or cement products making the HOA decisions arbitrary.

However there is case law in CO where the lack of prohibiting something in a covenant therefore allowed it. My attorney has stated the same... either the covenant implicitly prohibits other building materials, OR the intent of the covenant to "preserve the continuity of the project" would mean any product that looks like stone, wood or stucco as well.

He feels there are two ways to look at this, and I agree with that. I just wonder what the most reasonable determination is and I'm not sure I have a gut on it.




Both brick and concrete/cement block are considered masonry by basic civil engineering standards so they would fall into approved materials.

I feel it's reasonable to assume that if it is not the acceptable material but it looks like the acceptable material, it preserves the continuity of the project.

AugustinD


Posts:1585


07/22/2021 1:25 PM  
Posted By JenniferB14 on 07/22/2021 1:00 PM
And if steel is implicitly prohibited then so would brick, vinyl or cement products making the HOA decisions arbitrary.
To make a legal argument, this is not the way I would put it. Here are the legal arguments that have merit in my experience:


-- If brick, vinyl and cement products have been used so often, for whatever reason, then there is an argument that the covenant concerning building materials has been abandoned and no longer has legal force. You could ignore the Board's objections to your steel siding; let the HOA take you to court (maybe); hire an attorney (and forget about doing this pro se); and see what the court says.

-- The brick, vinyl and cement products are flatly in violation of the covenants. You have a right as an owner to bring suit and possibly prevails against the board and the owners who used the latter materials, because they all violated the covenants.

-- The covenant is effectively abandoned, so the Board is practicing unlawful selective enforcement by saying you cannot have the steel siding.


However there is case law in CO where the lack of prohibiting something in a covenant therefore allowed it. My attorney has stated the same... either the covenant implicitly prohibits other building materials, OR the intent of the covenant to "preserve the continuity of the project" would mean any product that looks like stone, wood or stucco as well.

He feels there are two ways to look at this, and I agree with that. I just wonder what the most reasonable determination is and I'm not sure I have a gut on it.
First, remember that many attorneys are happy to do whatever you tell them to do as long as you are paying the bill. This is what law school is largely about: Arguing for any position, using creativity, even the seemingly most indefensible position.

That part about preserving the continuity also got my attention when I read your first post. But from my reading of appeals court decisions, there would have to be an ambiguity in this covenant. Your attorney can argue there is an ambiguity. If the court agrees, then the next thing the court would say is that "ambiguities are resolved in favor of free enjoyment of the lot," and you get your steel siding. But I personally do not feel there is ambiguity.


Depending on how many buildings are not built from what the covenant requires, I think I might pursue an abandonment argument.

Posted By JenniferB14 on 07/22/2021 1:02 PM
oh, and our building is proposed to have about 50% exterior siding of wood
No,this is you trying to manipulate words in illogical ways in my opinion, because the covenant does not say "solely." I reject this particular argument that being only partly steel meets the requirements of the covenant. You say you all have case law on the lack of prohibiting yada.

Ultimately it comes down to how much time and money you want to spend fighting this. Your and your attorney's arguments have some merit. But it's a coin toss over who would prevail in court.

Let's see if anyone else here has insights that your attorney could use.
JenniferB14
(Colorado)

Posts:127


07/22/2021 1:41 PM  
I largely agree with you. And to complicate this more the board has said in an effort to allow more alternative building products they would like to change the ARC guidelines and allow up to 20% of said alternate materials and have offered that if I resubmit and meet these arbitrary criteria that have not been adopted into a rule of any kind, they will approve it.
AugustinD


Posts:1585


07/22/2021 1:53 PM  
Posted By JenniferB14 on 07/22/2021 1:41 PM
I largely agree with you. And to complicate this more the board has said in an effort to allow more alternative building products they would like to change the ARC guidelines and allow up to 20% of said alternate materials and have offered that if I resubmit and meet these arbitrary criteria that have not been adopted into a rule of any kind, they will approve it.
-- I am not sure whether you are largely agreeing with Carissa or myself or maybe both.

-- I am not sure the board's latest position (quoted herein) will count for anything until it's implemented as approval for a home in your HOA.

-- If you are saying something like, "the board is making up this sh-t as they go along, and disregarding the covenants," then I tend to agree.

-- A board cannot lawfully change ARC guidelines such that the guidelines violate the covenants. (Granted your attorney is ready to debate what the covenants say, such that anything goes as long as "harmony" yada is preserved. I am fine with him making whatever argument he wants, as long as you are willing to pay him. And sure, it's nice if you like the case law as well.)

CarissaM, "masonry stucco" is the same as "masonry"? Stucco is pretty specific IMO.


JenniferB14
(Colorado)

Posts:127


07/22/2021 2:04 PM  
AugustinD, I actually don't know how to screenshot the sections as you do to incorporate into the reply, but I largely agree with you I am saying.I get it with attorneys... my point is my attorney is giving what he sees as two possible rulings, but he has certainly declared the HOA is being extremely arbitrary by allowing a cement product and not a steel product etc... just as you and I have discussed in this thread.
AugustinD


Posts:1585


07/22/2021 2:12 PM  
Posted By JenniferB14 on 07/22/2021 2:04 PM
AugustinD, I actually don't know how to screenshot the sections as you do to incorporate into the reply, but I largely agree with you I am saying.I get it with attorneys... my point is my attorney is giving what he sees as two possible rulings, but he has certainly declared the HOA is being extremely arbitrary by allowing a cement product and not a steel product etc... just as you and I have discussed in this thread.
-- Understood.

-- Maybe one good demand letter from your attorney would get the Board to cave and keep at bay any fellow owners who do not like your faux wood (made of steel). Which I actually like.

-- The reason I kind of want the Board to cave is because of technology making the covenants somewhat outdated. Wood for one requires a lot more upkeep. Less upkeep means less work for the board and property manager to enforce covenants pertaining to unsightliness.

-- Another reason I want you to prevail is that IIRC you all have pretty big lots, right? The bigger the lot, and assuming the house is far enough off the road, the less your architectural choices really affect anything.
CarissaM


Posts:0


07/22/2021 2:24 PM  
Posted By AugustinD on 07/22/2021 1:53 PM
Posted By JenniferB14 on 07/22/2021 1:41 PM
I largely agree with you. And to complicate this more the board has said in an effort to allow more alternative building products they would like to change the ARC guidelines and allow up to 20% of said alternate materials and have offered that if I resubmit and meet these arbitrary criteria that have not been adopted into a rule of any kind, they will approve it.
-- I am not sure whether you are largely agreeing with Carissa or myself or maybe both.

-- I am not sure the board's latest position (quoted herein) will count for anything until it's implemented as approval for a home in your HOA.

-- If you are saying something like, "the board is making up this sh-t as they go along, and disregarding the covenants," then I tend to agree.

-- A board cannot lawfully change ARC guidelines such that the guidelines violate the covenants. (Granted your attorney is ready to debate what the covenants say, such that anything goes as long as "harmony" yada is preserved. I am fine with him making whatever argument he wants, as long as you are willing to pay him. And sure, it's nice if you like the case law as well.)

CarissaM, "masonry stucco" is the same as "masonry"? Stucco is pretty specific IMO.






Ahhh, yes I see that now, there is no comma between masonry and stucco! I read it that way as though it was listing masonry and stucco as two items which would open up masonry to be a few different materials. Sorry about that Jennifer.

It remains mine boggling to me that an HOA would not approve something that looked just like the material listed in the bylaws especially if they’ve accepted other items that are not listed in the bylaws.
CarissaM


Posts:0


07/22/2021 2:29 PM  
(MIND boggling, LOL)
JohnC46
(South Carolina)

Posts:11423


07/22/2021 3:34 PM  
Jennifer

You are trying to find a work around the existing material restrictions. While I do not disagree, the answer is change the existing material restrictions, not work around them with "semantics".
JenniferB14
(Colorado)

Posts:127


07/23/2021 7:54 AM  
I'm really asking people to read the covenant for what it is and provide thoughts. The ARC re wrote the covenant in our rules document to state:

"Exterior materials and finishes shall be harmonious with the surrounding environment, with stone, rock, stucco, natural wood, brick, and hardboard generally being acceptable. Metal exterior walls are prohibited"

So the ARC has completely abandoned the covenant by adding in several different materials not listed in the covenant, yet arbitrarily denied new technology steel that looks just like the hardieboard. So is the ARC providing a work around for the last 20 years or am I? And if you read the post, the judge stated the HOA nor ARC has any discretion regarding the covenants which means the ARC can not create these arbitrary rules which contradict the covenant.
JenniferB14
(Colorado)

Posts:127


07/23/2021 7:56 AM  
Augustin, what is your opinion knowing the ARC in the last 8 years has allowed steel roofing? Also see the ARC guidelines I just posted showing such a contradiction of terms from the covenant.
AugustinD


Posts:1585


07/23/2021 8:00 AM  
Posted By JenniferB14 on 07/23/2021 7:54 AM
The ARC re wrote the covenant in our rules document to state:

"Exterior materials and finishes shall be harmonious with the surrounding environment, with stone, rock, stucco, natural wood, brick, and hardboard generally being acceptable. Metal exterior walls are prohibited"

...

So is the ARC providing a work around for the last 20 years or am I?
I think it's important to get the wording right: What the ARC did is not a "work-around." It is an attempt to amend the covenants without the required membership vote. The ARC's guideline or rule is not enforceable by the courts in my opinion.

And if you read the post, the judge stated the HOA nor ARC has any discretion regarding the covenants which means the ARC can not create these arbitrary rules which contradict the covenant.
I would need to read the entire judge's decision. Until then, I agree with what you say right above.
AugustinD


Posts:1585


07/23/2021 8:10 AM  
Posted By JenniferB14 on 07/23/2021 7:56 AM
Augustin, what is your opinion knowing the ARC in the last 8 years has allowed steel roofing?
JenniferB14, you shared with us a part of your HOA's covenants section 9 as follows:
Posted By JenniferB14 on 07/22/2021 12:42 PM
"In order to assure the design continuity of the project, all residences and other buildings shall be constructed of wood, stone and/or masonry stucco and shall be colonial, contemporary or rustic in design style"
-- I want to double check. Do the covenants say anything about the roofs?

-- Roofs made from wood, stone and/or masonry stucco makes no practical sense, so I say what you quoted from the covenants above does not pertain to roofs.

-- If the covenants are silent regarding the roofs, then I say the HOA has no right to regulate roof material.

-- There might be some wording about harmonious design, but I doubt this will have much legal force. I think the phrase "to assure the design continuity of the project" in context is too vague to have much legal force with regard to roofs.

-- If you want to say, "Hey, the HOA allowed steel roofs, so my lot should be allowed steel walls," then I do not think your argument carries weight, for the reasons I give herein.

-- Others may have thoughts, of course. I could have missed something.

JenniferB14, I hope your goal is to get ideas about everything you can throw at the HOA, and run them by your attorney. If so, I agree this is the place to ask, though some posters are just way out in left field. Following a response here at hoatalk, one has to do one's homework (like go to an attorney and check out what she/he says). I am getting the feeling you know this. So I am "just saying" for the archives.
AugustinD


Posts:1585


07/23/2021 8:12 AM  
Posted By AugustinD on 07/23/2021 8:00 AM
The ARC's guideline or rule is not enforceable by the courts in my opinion.
I should clarify the above. The ARC's guideline or rule is not enforceable where it violates the covenants. Some of the guideline or rule is enforceable.
AugustinD


Posts:1585


07/23/2021 8:25 AM  
Posted By JenniferB14 on 07/22/2021 12:42 PM

Recently, during a court ruling on a different issue, the courts ruled "In reviewing the Declaration thoroughly, there are very few area of flexibility or discretion reserved to the various governing bodies." The judge goes on to state "Therefore at the most basic level, the court is unable to identify where the Declaration provides for any discretion to the HOA, its executive board, the ARC or any other committee in the application of (section) 9 of the Declaration."
JenniferB14, depending on what this different issue was, this court ruling may or may not be relevant ("binding"?) for your situation. For example, if you took your dispute over the steel siding to court, a different judge might be assigned. This second judge may or may not see things as the first judge did. Also if your dispute landed before the exact same judge (whom you reference above), then I cannot say for sure that he would say your dispute is "like enough" to the earlier, different dispute to apply the same reasoning to both.

Finding Colorado appeals court (not trial court) and Colorado supreme court decisions that are binding for where you live would be better. (I am not sure if Colorado has a single court of appeals or the appeals courts in Colorado are set up by district yada.)
JenniferB14
(Colorado)

Posts:127


07/23/2021 9:22 AM  
Augustin,

Yes, I am trying to have discussions for all view points on this just as you state above for possible ammunition. The unrelated issue had to do with the construction of a second driveway which appears in the same building covenant section of the declaration. The judge examined the section and identified covenants where the ARC or HOA does have discretion however there were only a few such as the ARC may approve signs. Otherwise, the building covenants and the use restrictions are specific and do not have wording to allow for ARC or HOA discretion. Unfortunately our HOA is incredibly infamous for creating their own rules within the covenants- even changing the use restrictions by creating rules and definitions and our use restrictions require unanimous consent to change (also as recently declared by the District court judge) yet now they are trying to find a work around. We need new blood on our board- it's been the same tight knit group of people controlling our community for over 20 years.
AugustinD


Posts:1585


07/23/2021 9:40 AM  
Posted By JenniferB14 on 07/23/2021 9:22 AM
The unrelated issue had to do with the construction of a second driveway which appears in the same building covenant section of the declaration. The judge examined the section and identified covenants where the ARC or HOA does have discretion however there were only a few such as the ARC may approve signs. Otherwise, the building covenants and the use restrictions are specific and do not have wording to allow for ARC or HOA discretion.
FWIW, and to sort of review, the "rules" of law the Colorado trial court identifies are consistent with my reading of the case law nationwide. Namely:

-- The covenants may give the HOA/ARC/Board discretion on certain issues.

-- Where the covenants give the HOA/ARC/Board discretion, the discretion must be exercised "reasonably."

-- Where the covenants do not provide for discretion, the HOA/ARC/Board may not exercise discretion in enforcement.

There's more that might be relevant. It all depends on the specifics of each situation.

I think most HOA Boards and HOA ACCs are clueless on these rules. On the other hand, some covenants are somewhat too vague. Which brings us to rules like:

-- Where covenants (contractual terms) are ambiguous, they are interpreted against the author or in favor of free enjoyment of property.

On the third hand, courts once in awhile will throw out a covenant altogether. E.g. I believe in California restrictions against pickup trucks are no longer allowed, per California case law, on account of times changing and everyone and her sister now owning a pickup truck or needing a pickup truck for her or his business. Also certainly any covenants that discriminate on the basis of race, gender, religion, disability, familial status, national origin, and ethnicity are null and void, as they violate "public policy" (specifically, the federal Fair Housing Act).

Some state courts will not throw out any architectural or use covenants but will throw out certain amendments to the covenants.
MaxB4


Posts:1211


07/23/2021 10:10 AM  



Not an accurate statement
MaxB4


Posts:1211


07/23/2021 10:11 AM  
I believe in California restrictions against pickup trucks are no longer allowed, per California case law, on account of times changing and everyone and her sister now owning a pickup truck or needing a pickup truck for her or his business.

Not an accurate statement
AugustinD


Posts:1585


07/23/2021 10:13 AM  
It's accurate enough.
MaxB4


Posts:1211


07/23/2021 10:19 AM  
Posted By AugustinD on 07/23/2021 10:13 AM
It's accurate enough.



Then the opinion of the attorney on the other thread is accurate enough.
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