Q. Our HOA board is trying to get its arms around architectural controls and standards. Our Declaration says that we can require homeowners to have any exterior modifications approved by the architectural standards committee. We do not have any architectural guidelines to go by so each application is looked at without reference to any particular standard, although past committee members have tried to be consistent. This seems like the wrong way to go about it. In fact, some of the fence applications would not be necessary if we just had some drawings showing what fence styles were automatically approved. Is that permitted? What suggestions do you have for getting some uniformity and more efficiency in our architectural regulation?
A. Most recorded covenants for associations require the members to seek pre-approval from the association before making any changes to the exterior appearance of the property. This is generally done through an architectural standards committee appointed by the Board of Directors. Because of the creativity of homeowners, architectural committees are frequently confronted with applications which request approval for changes for which there are no specific written standards or guidelines. Often members rightfully complain that there are no written standards to guide the board and, in those cases, the homeowners will sometimes question the integrity of the process and allege that the decision in his or her case was arbitrary. The Virginia Supreme Court has held that as long as the committee acts consistently and fairly, it is empowered to make decisions based on reasonable criteria (whether in the covenants, guidelines or just consistent with a uniform scheme of development established within the community).
Should community associations adopt written guidelines and standards even though the courts will typically uphold decisions rendered pursuant to the broad pre-approval language found in many recorded covenants? We believe the answer is an unqualified “yes”. Guidelines or standards stating which architectural changes the association will or will not approve can aid the homeowners by giving the homeowners advance notice of what is acceptable and what is not. This will, in turn, help the association’s position by establishing that the owner knew or should have known about the existing standards prior to planning their improvements. Written guidelines or standards will also help boards and committees from inadvertently making inconsistent and arbitrary decisions. Given the turnover on the average board or architectural committee, the threat of inconsistent decisions is great. Having a written set of standards will help new members to become familiar with the standards that ought to govern their decisions. At a minimum, the guidelines should address the association’s position on major and recurring alterations such as fences, paint colors, windows, doors, driveways, pools and other such popular exterior changes or additions. In fact, for items such as fence styles, materials and locations on the lot, specific rules on those items can allow fence construction without submitting a request to the committee so long as the homeowner is operating within the written specifications.
The guidelines should be specific enough to offer the owners a high degree of guidance. The term “guidelines” suggests that the board or its committee may exercise its discretion when addressing unusual situations. Thus, while standards and guidelines are not required, they can be very helpful to achieving efficiency and consistency in the work of the committee. Also, homeowners will be less likely to be frustrated by the process when they have some basis for making their plans and submitting their requests. For these reasons, we recommend them strongly. Most declarations will authorize the Board of Directors to create such guidelines, which are in the nature of rules and regulations.
Information on this topic and other topics of interest to homeowners living in associations will be provided in a day long event on Saturday, March 31, 2007 at the Chesapeake Conference Center. This one day event offers speakers on a variety of topics and a chance to meet with both vendors and other homeowners in community associations. More information can be obtained by calling the local chapter at 757-558-8128 or checking the CAI website at www.sevacai.org.