Property owner requests improvement for something in excess of HOA covenants
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Property owner requests improvement for something in excess of HOA covenants

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Q: I am on the board of directors of my homeowners association (HOA). The dues to our HOA are voluntary. We can’t assess liens against any property in our community; we can only sue a property owner for violations of our covenants.

Our HOA document speaks to architectural control covenants, and homeowners can make improvements to their homes so long as those improvements don’t violate the covenants. What happens when a property owner requests an improvement for something in excess of the covenants?

For example, let’s say they ask for a 5-foot fence when the covenants limit a fence height to 4 feet. Can the board approve that request, knowing it exceeds the covenants but will not seem to create any hardship or affect property values in the community?

My concern is whether this sort of exception places the board in a legal quagmire with other property owners who have complied with the covenants in the past.

A: The simple answer to your question lies within the association documents.

But we want to start with dues, as whether your association receives dues (or not) is somewhat irrelevant. Some associations must collect dues to pay for expenses that cover the entire association. You can think of these types of associations as buildings or properties with elevators, hallways, common areas, pools, clubhouses, tennis courts, other amenities, doormen, gardens, parkways and other areas that need ongoing repairs and maintenance, and are in need of insurance to cover the property.

Then again, you have other associations that don’t have those ongoing financial or physical obligations. These associations are more akin to single family homes in a development or townhouse buildings. Each owner takes care of their property and there are no shared expenses to be paid by an association. Nonetheless, the association wants to keep some order in the development, and, frequently, that order relates to construction issues and the look and feel of the neighborhood.

Some of these associations may not want any fences built between neighbors; others may want all the roofs to look alike; and still others may want the buildings to be painted in a certain color palette. In various parts of the country, these controls may limit the type of landscaping that can be placed in and around buildings, the type of windows used in the development, or a whole host of other design, construction and other issues that an association may want to control.

In any of these situations, the governing documents control the manner in which the association interacts with its owners. So, if the governing documents give the association the ability to allow a fence where a fence would otherwise be prohibited, then the association can do that. If, however, the association documents prohibit fences and the document does not give the association the ability to grant waivers, the association should not give that waiver (and could find itself facing additional liability if it does).

In your example, you’re quite right that the association could put itself in a bad situation granting a variance where it doesn’t have the authority to grant one. Once an association that was created with a uniform architecture in mind allows owners to deviate from that plan, it also diverges from the fundamental reasons for which the governing documents were created.

When an association whose sole purpose is to regulate architectural and construction issues no longer cares to enforce those basic rules, the association may lose the right to later try to enforce those same rules. And, that’s the important point. If you let your association members do whatever they want with their properties, you may not be able to put that genie back in the bottle.

You’ll have to review your governing documents to see what they say and then you’ll need to talk to an attorney that works primarily with associations to get some input as to where your state law stands on these matters. Then you can decide whether the board should agree to a variance or waiver of the rules set forth in your documents, or just say no.

(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)

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