Boards also need to give them the tools to interpret and enforce
architectural and aesthetic provisions within the development’s founding
documents. Here’s how to go about it.
1. Hold a periodic review of all existing architectural requirements.
Do they still make sense? Has anything changed since they were drafted?
If there’s someone out of compliance, can you take enforcement action
now, before there are multiple owners out of compliance for the same
thing? If you let something fester, you could run into charges of
selective enforcement down the road if your board does try to enforce
that provision later.
2. Verify that the existing architectural and aesthetic provisions still reflect the sense of the board.
As seats on the association’s board change hands, so will the tastes
and aesthetic priorities, preferences and pet peeves of board members.
3. Clarify. Is there any language in the existing
documents that is causing confusion? Are there sections of the CC&Rs
and other documents that are vague or missing key provisions?
4. Stress-test your policy against challenges under federal, state and local laws.
An association in Raleigh, North Carolina recently paid $20,000 to
settle a lawsuit alleging that the association illegally forced a blind
resident to remove her wheelchair ramp after her disabled mother who was
living in the residence died. The North Carolina Human Relations
Commission ruled against the association and the residents sued.
5. Train and educate board members and staff.
Provide training to board members on the provisions of the Fair Housing
Act, and consider developing an in-house manual on fair housing
provisions and discrimination laws.
6. Be clear about why requests for variances are denied.
Nobody likes to get a rubber-stamp refusal from a bureaucrat. Someone
went through a lot of time and effort to put together a proposal. Boards
should have the courtesy of responding. Make sure the requirements for a
decision are easily discernable and reasonable, and then provide the
owner with a paragraph or two explaining why the board denied the
request.
Ideally, the denial letter should specify some ideas for how the
project could be modified to meet the concerns of the board and to pass
muster. This is a win-win situation: The resident gets to do his or her
renovation or project, and the board gets its concerns addressed.
7. Don’t grant variances without a good reason. The
board of directors put the policy in place for a reason, and this policy
was voted on by the members at large. Subcommittee members should not
be subverting their decisions by granting variances willy-nilly. Members
of the architectural review board must remember that they are there to
look out for the interests of all members of the association.
8. Make sure your enforcement has teeth. There
should be mechanisms in your covenant documents that give the board the
means to enforce compliance with architectural and aesthetic guidelines.
9. Remember that lawsuits are expensive.
Associations should plan on spending at least $10,000 to pursue a
lawsuit against a member over a variance issue. Two or three times that,
or more, if the issue is contested. Pick your battles carefully. If the
process of charging fines isn’t effective, it’s often better for the
HOA to go ahead and fix certain issues, and then present the homeowner
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