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Subject: Variance language
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Author Messages
NZ
(Ohio)

Posts:18


08/24/2021 10:03 AM  
Hi everyone! I'm new here*, looking for some examples of variance language.

I'm on a committee to update/rewrite my HOA's CC&Rs. We currently have nothing in there about variances and I thought it would be a good idea to add some -- so of course researching the best way to write them became my action item.

I'm hoping a few people will send examples either from their own CC&Rs or ones you've found and liked, and then I can share those with my committee so we can sort of borrow a bit from here and a bit from there to patch together something that suits us best (and then clear with the lawyer we keep on retainer).

Thanks in advance!

*I performed a search for "variance" on this site and got back hundreds of topics; I skimmed the titles of the first dozen or so and decided to just ask this question in a new topic. Apologies if that is against etiquette; in which case if someone could just link me to the appropriate topic I'd appreciate it.
SheliaH
(Indiana)

Posts:4290


08/24/2021 10:35 AM  
Well, I found this definition from Googling - "Essentially, a property owner requests a variance when their planned use of their property deviates from local zoning laws designed to protect property values. If granted, a variance acts as a waiver to some aspect of the zoning law or regulations."

I don't know if that helps (in this case, I would think you'd apply it to exterior change requests). More importantly, you really need to get your association attorney to assist you with drafting amendments/updates to your CCRs. You want something that doesn't try to supersede federal state or local law (all of which trump bylaws and CCRs unless your state law dictates HOA documents apply if they're more strict than the statute) and you want them to stand up in court. You may want to start by considering under what circumstances would the board consider a variance and start your draft from there.
NZ
(Ohio)

Posts:18


08/24/2021 10:51 AM  
Thanks Sheila. Before joining this forum I did a search on DuckDuckGo for variances and found some examples, but none included the important context of whether anyone thought those examples worked well. That's why I'm asking here instead.
NZ
(Ohio)

Posts:18


08/24/2021 10:51 AM  
Oops, sorry I mistyped your name. Shelia!
SheliaH
(Indiana)

Posts:4290


08/24/2021 10:56 AM  
No worries (everyone does that!) I figure as long as the IRS and my medical records has it right, I can live with the rest
KerryL1
(California)

Posts:8729


08/24/2021 12:26 PM  
I agree with Shelia that especially about variances, you should count on your HOA attorney. S/he probably has a stock phrase to insert in your CC&Rs.

The language depends on if your attached condos or detached homes, in part. but in either case, our owner CC&Rs state that granting a variance to one property does not set a precedent. Requests for variances are decided on a case by case basis. The is not our exact wording, so might be off base a bit.

After 20 years, I think we've had only one request for a variance.
CathyA3
(Ohio)

Posts:2599


08/24/2021 12:40 PM  
Re-writing or amending CC&Rs is a job for a lawyer.

It's fine to have a committee of homeowners that comes up with a list of changes that they'd like to see. But these things are written in legalese, which is above most homeowners' pay grade, and one of the things that the lawyer will do is make sure that any changes do not contradict the rest of the CC&Rs or applicable state/federal law.

Poorly worded CC&Rs will set you up for years of conflict and legal wrangling, so don't be tempted to DIY - this is one instance in which DIY emphatically does not save money.

(In some states it's even illegal for non-lawyers to do legal work.)
NZ
(Ohio)

Posts:18


08/24/2021 1:20 PM  
Yes, to clarify: the committee is assembled to identify CC&R points we want to change and suggest those changes. So although we are "rewriting", the final wording will be via our lawyer (as I understand it).

@Kerry: we have detached homes.
MichaelS56
(Minnesota)

Posts:300


08/24/2021 4:38 PM  
Are you ready to do battle with Owners that will push the boundaries of the variances that will be set-up?
AugustinD


Posts:1920


08/24/2021 6:36 PM  
In my experience, in the HOA world, "variance" is a word grossly misused and misunderstood by Boards and HOA members alike.

What an owner is doing in his/her home; on his/her lot; in his/her unit either complies with the covenants or violates the covenants.

Some incompetent boards and incompetent architectural control committees think they have a power to grant an owner the righ to violate the covenants. No they do not.

The phenomenon of "grandfathering" comes up here a lot. It's also abused. "Grandfathering" can mean a few things. First and foremost, it should mean the HOA Board checked in with the HOA attorney about something the board thinks needs to be "grandfathered.'

I advise not using the word "variance" anywhere in the covenants.
CathyA3
(Ohio)

Posts:2599


08/25/2021 5:01 AM  
I agree about variances: if it's something you want to allow, don't put it in the restrictions.

When we amended our CC&Rs, we developed them with an eye to enforcement. If the board can't reasonably enforce something, then there is no point in having in the CC&Rs - otherwise you'll be setting yourself up for constant bickering or it won't be enforced at all, so why do it.
NZ
(Ohio)

Posts:18


08/25/2021 5:40 AM  
@Michael: I believe the idea of variances is to avoid having to do battle with members who feel they have a justification for pushing the boundaries of the original restrictions; it provides an avenue so those members can, if their justification is legitimate, come to a special arrangement with the HOA that is above board and hopefully win/win.

@Augustin: My understanding is that a variance does not grant a member the right to violate the rules, but rather waives the HOA's right to enforce a specific rule in a specific instance. This is an important legal distinction for [reasons I don't pretend to understand because I'm not a lawyer].

I do wonder if maybe thinking similar to yours is why variances were not included in my HOA's CC&Rs in the first place. I am of the mindset that I would rather argue over a variance (both as a member who might request one, and if I were hypothetically an HOA board member in a position to approve or deny one) than argue with members who simply violate the CC&Rs, or with an HOA that simply refuses to open its eyes. A variance request process at least gets us talking: provides an opportunity for the member to become better educated about the rules, and the board to become better educated about the member's particular needs and/or concerns.

@Cathy: Agreed about enforcement; that is also the primary goal with our rewrites. With variances, I think the idea is that not all people/properties are in the same situation. A restriction that makes sense or even is helpful for 95% of them may be an unreasonable burden to the other 5%. If there is a way to build that flexibility into the governance then why not do it? Especially if the variance process is straightforward and requires minimal interpretation on either side.
AugustinD


Posts:1920


08/25/2021 7:32 AM  
NZ, is your intent to amend the CC&Rs so that those who are currently in violation of the covenants are no longer in violation?

What you describe will be grounds for a defense of "selective enforcement" when the HOA tries to enforce a covenant/rule against one owner but does not enforce the same rule against an owner.

You need an attorney.
CathyA3
(Ohio)

Posts:2599


08/25/2021 9:00 AM  
Posted By NZ on 08/25/2021 5:40 AM
... snip...

@Cathy: Agreed about enforcement; that is also the primary goal with our rewrites. With variances, I think the idea is that not all people/properties are in the same situation. A restriction that makes sense or even is helpful for 95% of them may be an unreasonable burden to the other 5%. If there is a way to build that flexibility into the governance then why not do it? Especially if the variance process is straightforward and requires minimal interpretation on either side.



Just one comment on the "unreasonable burden" idea:

In general it sounds good since courts are big on "reasonable" if they have to decide something.

The trouble is that not all provisions of CC&Rs can be waived because they constitute an unreasonable burden - the big one being assessments, which the board has no authority to waive or reduce (although some do try it). If someone stops paying their assessments, they can lose their home to foreclosure. Viewed from that perspective, it's harder to justify variances on less important or less costly things.

In general, I don't like variances because the CC&Rs form part of the contract on your home. It becomes difficult to hold people to the terms of their contracts if it's unclear what they're agreeing to when they sign on the dotted line. And as Augustin noted, "selective enforcement" is grounds to toss out a restriction altogether - and if you can't enforce it, why have it?

So this is one of those ideas that sound good but actually make life more difficult. The more black-and-white you can make your CC&Rs, the better off everyone will be.

Of course if you're working with a lawyer on your re-write, ask what they think about it.
NZ
(Ohio)

Posts:18


08/25/2021 9:09 AM  
@Augustin: As I have stated, we have an attorney who will be doing the final pass.

We are looking to eliminate restrictions we feel are outdated, potentially add new ones (though I am inclined against this personally), and tighten up language on all of them so they are enforceable.

For example, one restriction on the chopping block is a rule against sheds. Although there is consensus that we should get rid of existing language that forbids sheds altogether, some committee members want to go back in and specify the materials sheds may be composed of, e.g. to match the house. I foresee circumstances in which a member may not be able to obtain the materials specified, or only be able to obtain them at great expense (e.g. what if the house is brick, or has a type of siding that is no longer manufactured?), so I could see a variance being a good idea there.

Keep in mind, my personal preference would be not to specify anything other than that the shed needs to be maintained so it is safe and doing its job, but there's always a chance I might not get my way.

Yes, technically "selective enforcement" is exactly what a variance is; but the idea is that the basis of the selection goes through a transparent process everyone has agreed to and is not arbitrary.
KerryL1
(California)

Posts:8729


08/25/2021 9:27 AM  
Re: sheds. It seems to me that if the HOA permits them the CC&Rs can also specify that the Board can make rules about their compositions, size, etc.

These can be ordinary rules and Architectural Requirements. Rules are easy to change
AugustinD


Posts:1920


08/25/2021 9:47 AM  
Posted By NZ on 08/25/2021 9:09 AM
@Augustin: As I have stated, we have an attorney who will be doing the final pass.

We are looking to eliminate restrictions we feel are outdated, potentially add new ones (though I am inclined against this personally),
Try to be aware that adding restrictions, even by a lawful vote of the owners, is legally dangerous and not advisable, for the reasons already mentioned.
Yes, technically "selective enforcement" is exactly what a variance is;
In the language of city planning commissions and city councils, this is not "exactly what a variance is." As an introduction see SheliaH's first post. The word is simply n/a when it comes to HOA covenants and HOA owners.

I think this forum is about education. I am posting for the archives: No HOA board or owner should ever invoke the word "variance." Sheds either comply with the architectural guidelines (in the eyes of the Board and hopefully the HOA's attorney) or they do not.
but the idea is that the basis of the selection goes through a transparent process everyone has agreed to and is not arbitrary.
Then in the language of covenants, HOA Rules and Regulations, and HOA law, what you want is architectural guidelines for what will and will not be approved for, for example, sheds.

One can google and find many HOAs with guidelines on sheds.

Architectural guidelines are not the stuff of "variances."

(Edited out some really snotty remarks at this point. But I am still thinking them.) I think use of the word "variance" should be a violation of the hoatalk's terms of service.

NZ, I hope you are not a HOA/COA manager. Because paid managers in particular are prohibited from preparing even drafts of HOA/COA amendments, per what CathyA3 posted.



NZ
(Ohio)

Posts:18


08/25/2021 12:25 PM  
Hah, Augustin I read you loud and clear and I will take that advice to heart.

And no I am not any kind of HOA official, just a member who joined a committee.
JohnC46
(South Carolina)

Posts:11665


08/25/2021 1:37 PM  
Posted By AugustinD on 08/25/2021 9:47 AM
Posted By NZ on 08/25/2021 9:09 AM
@Augustin: As I have stated, we have an attorney who will be doing the final pass.

We are looking to eliminate restrictions we feel are outdated, potentially add new ones (though I am inclined against this personally),
Try to be aware that adding restrictions, even by a lawful vote of the owners, is legally dangerous and not advisable, for the reasons already mentioned.
Yes, technically "selective enforcement" is exactly what a variance is;
In the language of city planning commissions and city councils, this is not "exactly what a variance is." As an introduction see SheliaH's first post. The word is simply n/a when it comes to HOA covenants and HOA owners.

I think this forum is about education. I am posting for the archives: No HOA board or owner should ever invoke the word "variance." Sheds either comply with the architectural guidelines (in the eyes of the Board and hopefully the HOA's attorney) or they do not.
but the idea is that the basis of the selection goes through a transparent process everyone has agreed to and is not arbitrary.
Then in the language of covenants, HOA Rules and Regulations, and HOA law, what you want is architectural guidelines for what will and will not be approved for, for example, sheds.

One can google and find many HOAs with guidelines on sheds.

Architectural guidelines are not the stuff of "variances."

(Edited out some really snotty remarks at this point. But I am still thinking them.) I think use of the word "variance" should be a violation of the hoatalk's terms of service.

NZ, I hope you are not a HOA/COA manager. Because paid managers in particular are prohibited from preparing even drafts of HOA/COA amendments, per what CathyA3 posted.







I agree. No need for variances to be defined. As far as sheds go, set some standards (size, base, material, appearance, etc.) and wait for someone to ask for a "variance/exception".
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