Get 1 year of free community web site hosting from Community123.com!
Monday, June 01, 2020











HOATalk is a free service of Community123.com:

Get 1 free year community website and email newsletter hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Can ARC votes be secret?
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
AaronB4
(New Mexico)

Posts:10


12/11/2017 10:16 PM  
My HOA is trying to setup an Architectural Review Committee. It is required by our bylaws, but I don't think the HOA has had one in the last 30+ years.

The only people who have expressed interest in being on the committee are mean. One has all but said she wants on the committee so she can go after her next door neighbor. I suspect the others have similar intentions.

I have asked several people to volunteer, but they have all said no. One told me it was because she fears retaliation from other residents if she doesn't vote their way. Can ARC votes be kept secret?
GenoS
(Florida)

Posts:3814


12/12/2017 2:40 AM  
I think boards and committees should not be looking for creative ways to hide things from homeowners. If a board or committee is acting in pursuit of petty revenge then that's a breach of fiduciary duty and leaves the door wide open for charges of "selective enforcement". If it can be shown that action was taken with malicious intent to "get" someone as opposed to someone else then that's probably enough to strip the director/officer/committee members of their protection under the association's D&O insurance policy.

If owners fear retaliation for any reason, then the board is doing something wrong.
JohnC46
(South Carolina)

Posts:9471


12/12/2017 5:15 AM  
Aaron

Many BOD's also act as the ARC. After all is is the BOD with the final say be there an ARC or not.
SheliaH
(Indiana)

Posts:3229


12/12/2017 5:59 AM  
I agree with Geno and John. The BOARD should appoint the committee members - if you're concerned some people will not be fair in the decision making, don't appoint them. Ask applicants why they're interested in serving and how they would address accusations of selective enforcement. Better yet, how would they avoid selective enforcement - their responses could be an indicator of how they'd serve.

The Board should also set specific procedures as to how the committee will do its job - treating all the requests in the same manner can help reduce the possibility of selective treatment.

Rather than the committee making the decision on approving ARC requests or not, it may be best if they simply review the requests to ensure everything's in order and then make a recommendation to the board, which would make the final decision. You don't have to say how each member voted, simply say the committee voted to send the request to the board with a recommendation to approve or disapprove.
SueW6
(Michigan)

Posts:693


12/12/2017 5:59 AM  
The Board should Appoint the ARC committee to be comprised of people who see that decisions are somewhat objective - based on written ARC guidelines. So the board needs to be sure that ARC rules are clear and concise and updated. That's their job.
.

Anyone who "all but says" they are volunteering to get back at someone should not on the committee.

It's hard to get volunteers today. I think that certain people need to be "invited" to be on a committee by the Board. Sometimes one-on-one visits to recruit a select group is best.

If you bylaws require an ARC and you can't get someone to do it, hire an outside consultant (a licensed builder)

BenA2
(Texas)

Posts:709


12/12/2017 7:12 AM  
The answer can probably be found in your state HOA or corporation law. That being said, I think secret votes are a bad idea. Each vote should be objective based your CC&Rs, so no one should have anything to hide.

For everyone who thinks the Board always has the final say, that is just not true. There are many HOAs where the ARC is independent of the Board.
AaronB4
(New Mexico)

Posts:10


12/12/2017 11:21 AM  
I've been asking people, one-on-one. That is how I know they are afraid of harassment and retaliation. I am hoping that if the votes are anonymous, they may be more willing to volunteer because they'll have plausible deniability.

Yes, there is a problem with the board. Specifically, the people who want to go after their neighbors are on the board. I though we were going to get rid of one of them at the last annual meeting (two open seats up for reelection, three candidates), but a board member was bullied into stepping down so there would be three open seats.

The fear of harassment is real. Since I have been advocating for not having board members on the ARC, I have been receiving angry phone calls daily, early in the morning (these people know I work at night, and I am usually asleep when they call). I started turning off my phone, and now I get people ringing my door bell, or slamming my screen door.

Our covenants and bylaws only say that votes by the board can't be secret. The only thing I can find in NM law is that we are required to maintain "records of all
actions taken by a committee in place of the board or on behalf of the association for the previous five year." Would "The ARC voted to..." or "By a 2-1 vote, the ARC decided to..." be sufficient to meet the requirement for a record?
KerryL1
(California)

Posts:7230


12/12/2017 2:59 PM  
Interesting citation, Aaron. It does not appear that how individuals vote, as Sheila suggests, needn't be in the Committee's minutes, just the vote outcome.

If the board, or a committee of the board designs a Guidelines for Architectural Changes that's reasonable and fair and if the charter of the ARC --also designed by the Board--says they must state their reasons for refusing requests, you can keep arbitrariness out of the equation.

Are any ARC Guidelines built into your CC&Rs (as in ours)?

Does NM law say appeals by Owners can be made to the Board. Our CC&Rs require that and I think CA Civil Code does too.

But your Board sounds terrible--sorry, Aaron.
AaronB4
(New Mexico)

Posts:10


12/12/2017 4:32 PM  
Originally, the HOA was responsible for everything up to the patio and exterior walls, including painting and other exterior maintenance. The details in the CCR basically say the HOA can deny anything it considers not in keeping with the harmony and conformity of the community. Since originally the only things an owner could change were the doors. windows, and patio plantings, that lack of detail was probably ok.

At some point, the CCR was amended so that owners were responsible for the "yard" in front of their patio, and for all exterior maintenance. No additional directions were added to the CCRs. The only guidelines that have been in use since I have lived here are the paint colors.

Are there any sample ARC charters I could use as a template? Or sample guidelines?
RichardP13


Posts:0


12/12/2017 5:32 PM  
According to Robert's Rule of Order, one of the methods for voting is by ballot, which in and of itself, is voting in secrecy.
BenA2
(Texas)

Posts:709


12/13/2017 6:05 AM  
Authority for the ARC is usually found in the CC&Rs because the CC&Rs are the only document that can give you authority over private property. So, in my opinion, a charter for the ARC would serve no purpose unless it is in the CC&Rs.

Many HOAs make the mistake of thinking that they can create additional control over private property using guidelines, bylaws, rules, etc.
RichardP13


Posts:0


12/13/2017 7:34 AM  
Posted By BenA2 on 12/13/2017 6:05 AM
Authority for the ARC is usually found in the CC&Rs because the CC&Rs are the only document that can give you authority over private property. So, in my opinion, a charter for the ARC would serve no purpose unless it is in the CC&Rs.

Many HOAs make the mistake of thinking that they can create additional control over private property using guidelines, bylaws, rules, etc.



Going to disagree.

The CCRs can give the Board the authority create more specific rules than what is in the CCRs. Generally, that is where the rules and regulation come from. You pull all the rules from all the sections and then expand AS LONG AS ANY NEW LANGUAGE IS NOT IN CONFLICT and that any rules created are "fair and reasonable".

For instance, the CCRs may say the Board doesn't have the authority to create parking rules within the complex. The Board therefore cannot create rules UNLESS the CCRs are amendment by the percentage required by the membership.
KerryL1
(California)

Posts:7230


12/13/2017 1:12 PM  
I agree with Richard here.

Perhaps, Ben, because we're a high rise HOA, there are plenty of ARC-type rules in our CC&Rs. More, the CC&Rs, give the authority to the board to elaborate on these CC&R details so long as, to Richard's point, they do not conflict with the CC&Rs.

So.... we do, in fact, have a charter for the ARC so that committee members know what is expected of them. Their charter IS an elaboration of some details in our CC&Rs and also complies with CA laws.

As a high rise, Aaron, our Guidelines wouldn't be useful to you. But in what ways could a nasty ARC or board member make it hard for an owner to make changes?
AaronB4
(New Mexico)

Posts:10


12/13/2017 4:18 PM  
I am actually less concerned about the people forbiding future changes, and more concerned about them trying to force owners to make changes. The HOA hasn't had any rules regarding doors, and over the years many owners have replaced their front door without requesting approval. Others requested approval, but were never given written approval. (A previous president had a 'whatever' approach). No one complained until recently. One of the people in question wants to make these owners replace their door with one approved by the HOA. One wants to make her neighbor redo his yard, even though it meets the current requirements (it is xeriscape, and the HOA hasn't cared beyond that.)

I could also see inconsistent enforcement being an issue.
SheliaH
(Indiana)

Posts:3229


12/13/2017 6:07 PM  
Good grief, your neighbors need to find something constructive to do instead of plotting against each other - are there people who really want to stick it to the folks next door because of a damned door????

Maybe what your community needs are design standards, which could address things like color, type of windows and doors, etc. The main idea of requiring approval for exterior changes is supposed to maintaining the community's original look and design, and hopefully ensure a reasonable quality of workmanship. Unfortunately, some people get bogged down on issues like picket style fences vs. shadow box, houses painted pink vs. purple vs. beige and why Mrs. So and So has a hedge in her yard for a fence.

It seems the board will have to take more of the ACR approval process since there don't appear to be homeowners who are adult enough to behave in a fair and consistent manner. The committee can brainstorm over design standards (the board can tell them what to focus on, such as doors and windows) and then make recommendations to the board. Take them out of the approval process altogether, but they can have a hand in setting the design standards (all of which should be approved by the board before it takes effect). For this to work, I'd expect to see committee members walking around the communities, perhaps talking to people about what they'd like to do, colors and styles they prefer, and then the board can send draft standards to the homeowners for their input before tweaking them and signing off on them.
SheliaH
(Indiana)

Posts:3229


12/13/2017 6:07 PM  
Good grief, your neighbors need to find something constructive to do instead of plotting against each other - are there people who really want to stick it to the folks next door because of a damned door????

Maybe what your community needs are design standards, which could address things like color, type of windows and doors, etc. The main idea of requiring approval for exterior changes is supposed to maintaining the community's original look and design, and hopefully ensure a reasonable quality of workmanship. Unfortunately, some people get bogged down on issues like picket style fences vs. shadow box, houses painted pink vs. purple vs. beige and why Mrs. So and So has a hedge in her yard for a fence.

It seems the board will have to take more of the ACR approval process since there don't appear to be homeowners who are adult enough to behave in a fair and consistent manner. The committee can brainstorm over design standards (the board can tell them what to focus on, such as doors and windows) and then make recommendations to the board. Take them out of the approval process altogether, but they can have a hand in setting the design standards (all of which should be approved by the board before it takes effect). For this to work, I'd expect to see committee members walking around the communities, perhaps talking to people about what they'd like to do, colors and styles they prefer, and then the board can send draft standards to the homeowners for their input before tweaking them and signing off on them.
AaronB4
(New Mexico)

Posts:10


12/14/2017 5:21 PM  
Unfortunately, the people who aren't adult enough to behave in a reasonable manner are on the board.

I've gotten two reasonable people to volunteer for the board, and I'm working on a third. Saturday we have a board meeting and I'll find out if the board will actually vote to form the committee, and appoint these individuals.

I do intend to ask them to cite the applicable part of the CRR, but other than some things about service yards(?), about the only thing it cites is "harmony and conformity."
JanetB2
(Colorado)

Posts:4211


12/17/2017 12:43 AM  
Posted By AaronB4 on 12/13/2017 4:18 PM
I am actually less concerned about the people forbiding future changes, and more concerned about them trying to force owners to make changes. The HOA hasn't had any rules regarding doors, and over the years many owners have replaced their front door without requesting approval. Others requested approval, but were never given written approval. (A previous president had a 'whatever' approach). No one complained until recently. One of the people in question wants to make these owners replace their door with one approved by the HOA. One wants to make her neighbor redo his yard, even though it meets the current requirements (it is xeriscape, and the HOA hasn't cared beyond that.)

I could also see inconsistent enforcement being an issue.


You potentially need to look at your State Laws ... In my state if an owner replaced their front door and would be a “construction issue” the HOA would have one year to file a lawsuit if such action violated the CCR’s ... if they did not within the time frame ... the HOA would be SOL ...

My question would be how long ago were these doors replaced??? Also ... If your HOA does not have anything in their CCR’s regarding doors ... good luck winning a lawsuit. AND .. BET a lot of money your State Laws are similar to CO where EVERY owner is allowed to xeriscape their yard ...
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Can ARC votes be secret?



Get 1 year of free community web site hosting from Community123.com!

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement