One of the reasons many people choose to live in a community association is the aesthetic appeal—home styles are complementary, with similar features, perhaps similar colors and/or layouts. In order to maintain that aesthetic uniformity, the Association must be involved in any planned changes to a home’s exterior or to landscaping or yard areas.
Occasionally, when I send a homeowner a letter advising him that a recent change made to his home was not approved by the Association, I receive an angry retort, with the homeowner asserting, “It’s my home and I’ll do what I want! I am the king of my castle – you can’t tell me what to do!” I then point out that, indeed, the Association can tell him what he can and cannot do – and that such regulation is part of community living. While that should not come as a surprise to homeowners, it sometimes does.
Limitations on Changes to the Exterior of a Home
Most, but not all, declarations of covenants include some provision requiring homeowners to obtain some level of approval for changes to the exterior of their home or a home’s landscaping or yard area. In many cases, that approval is granted by the Board of Directors. In some associations, the Board establishes an Architectural Control Committee (or Architectural Review Committee) (“ACC”), which is authorized by the Board to review applications for approval of such proposed changes.
Some homeowners, however, believe such approval processes apply only to “big” changes like building an addition—not planting flowers or installing awnings, security lighting or storm doors. In most cases, the homeowner is simply wrong. In most cases, any change to the exterior of a home (and sometimes, changes to the interior that are visible from the exterior) requires approval by the Board or ACC. ACC/Board approval for changes to landscaping is also often required in townhome communities and sometimes in traditional single family home communities as well. A failure to obtain ACC approval in advance of making such changes may prove costly for the ill-advised homeowner. The homeowner may be fined and may be required to restore the property to its prior condition.
While the homeowner has the bulk of the responsibility when the homeowner wants to make a change, the Board/ACC also bears some responsibility as well. The Board/ACC must employ the same evaluation for applications for similar improvements, and must be consistent in its approval/denial. Whether one homeowner is “easier to work with” than another is immaterial when the Board/ACC is considering each owner’s application for approval for installation of a fence, for example. The aesthetics and design are legitimate factors to consider, but personalities are not.
It is also important for the association to address unapproved changes immediately upon noticing them. Many associations’ declarations provide that any alteration in place for a stated period of time (often 90-180 days) without objection is deemed approved, even if the owner never sought approval in the first place.
If a homeowner makes an unapproved change, the association may, subject to the terms of its governing documents, impose fines for the violation of the governing documents (failure to obtain prior architectural approval) and may, if necessary, take steps necessary to return the property to its original condition and assess the related costs to the violating homeowner. Associations should consult their legal counsel before taking any action to remove alterations or restore the property to its original condition.
Of course, an Association can opt to pre-approve certain changes via its Rules or other governing documents, or it can establish certain changes that do not require pre-approval. For instance, the Board could establish a policy (or rule) stating what landscaping changes can be made without seeking specific approval. The Board could also, for example, pre-approve certain styles of storm doors. If an owner wants to replace her storm door (or install a new one), she would not need to seek ACC approval so long as she chose one of the pre-approved styles. If she chose a different style, however, she would need to seek ACC approval prior to installing the door.
Accommodations for Disabilities
Modifications to the exterior of a home or building to provide easier access for a disabled person are a special category. A townhome association cannot deny a homeowner’s request to install a ramp, for example, simply because “it’s ugly” or “no one else has one.” The Association must make reasonable accommodations in response to the disabled person’s request for such accommodation. (The Association is generally under no obligation to offer an accommodation where none has been requested.) The Association could, for example, require that a ramp be screened with landscaping, be maintained by the homeowner (even if located on common areas), and removed when it is no longer needed or when the current disabled resident leaves the home. The cost to implement the accommodation can be a factor in the Association’s decision. For example, an Association may be entitled to deny a resident’s request to install an elevator as an accommodation for the resident’s disability, since installing an elevator at Association expense would impose a significant financial hardship on the Association. Associations should consult their legal counsel before taking any action in response to a request for accommodation. Denying a reasonable request could constitute a violation of the Fair Housing Act, which could subject the Association to civil penalties and possible litigation.
The Approval Process
Most associations have information in the association’s Rules as to how an owner can seek approval for a proposed change. In most, cases, the owner completes a form requesting approval of the change, and submits that form to the Board/ACC. In some cases, additional documentation (plans and specs, description of materials, etc.) may be required. Further, some associations require that an owner seeking to make certain changes obtain the approval of neighbors whose view or use of their own properties may be affected by the change. If in doubt, an owner should ask the Board or management agent what needs to be done to request approval of a proposed change. Associations can avoid problems by including reminders of the approval requirement on websites and newsletters—especially in spring and summer, when many changes take place.
Abiding by architectural control policies and practices helps ensure that an association can maintain the aesthetic appeal that attracted many owners to the community in the first place. Failing to abide by those policies and practices – or failing to equitably enforce them – can lead to changes in the community’s appearance that adversely impact the value of homes or the all-important “curb appeal.” While a homeowner may believe himself to be king of his castle, his reign is nonetheless subject to the rules of his kingdom. Even the king is not above the “laws of the kingdom.”
Originally featured in CAI Community Living Magazine
https://issuu.com/cai-mn/docs/cai-mn-mcl-mar-apr-2016/12