Q. It is springtime and a few creative and industrious neighbors are out erecting fences and sheds as others have done in the past without requesting the permission of the Association. We are a 24 home association that recently elected a homeowner board. The developer finished the last home in late fall. We are self-managing and are not sure what to do about enforcing our covenants. We have a provision that requires that any structures or exterior modifications have to be approved by the Board of Directors but the homeowners aren’t asking permission.
A. From your question, it sounds like there may not be sufficient mechanisms in place by which you can effectively enforce your covenants. It also sounds like the developer may not have vigorously enforced the covenants or informed the homeowners of the process required when they want to make an exterior modification. In many larger communities there are architectural guidelines that clearly define the approval process and the types of exterior improvements that will be permitted.
The first thing you need to take a look at is how your declaration defines or specifies the size and appearance of exterior improvements that can be made, such as fences. Many declarations have fairly clear fence specifications but others do not specifically mention fences. Where there are not specific types of exterior modifications addressed either in the declarations or in architectural guidelines (which are, in effect, rules and regulations published by the Board of Directors), there is an unfortunate opportunity for litigation to ensue where the homeowners do not consider their addition to be a structure and, therefore, subject to review and approval with potential conditions.
As an example, in a Kentucky case, a homeowner wanted to construct an enlarged concrete parking pad in the front yard near the edge of his lot. The architectural committee found it to be in violation of the architectural guidelines. When the homeowner took the matter to court, the court ruled that the pad was not a structure. On appeal, the Court of Appeals reversed that decision. In a Texas case, the Association took the ultimate step in enforcing architectural decision. In that case a homeowner had constructed an unauthorized carport and refused to remove it when directed to do so. The Association resorted to court to obtain an injunction against the homeowner ordering the removal of the structure under penalty of being held in contempt of court.
In a Missouri case, a family wanted to install a swimming pool with a clear vinyl dome, 28′ x 54′, in order to allow year round swimming. The pool was approved, but not the dome. However, the family installed the dome anyway. The declaration required that all fences, buildings or structures be approved by the Board of Directors prior to construction. The Court ordered removal of the dome.
In a Virginia case in the Richmond area, a homeowner erected a large flag pole on his property in order to display primarily the American flag. The community’s rules allowed for display of flags, utilizing certain methods and criteria for flag poles attached to the homes. The Board considered the flag pole to be a structure which required approval which was not sought. The Circuit Court of Henrico County ruled that the flag pole was a structure and that the Association had the authority to prohibit it.
Hopefully these cases illustrate that it is wise to define clearly, and with some degree of specificity, what is going to be permitted by the Board or Architectural Standards Committee and what is not in order to avoid litigation. While all possibilities cannot be predicted, the more popular types of exterior additions should be considered and dealt with in architectural guidelines so that the homeowners will know, in advance, what to expect from the Board or the Architectural Committee. Also, persons buying homes in the community will receive these guidelines as part of their disclosure packet required by State law. Consequently, if a prospective buyer is not happy with the levels or types of regulation, he will not purchase a home in that particular community, which is a good thing for all concerned.
In conclusion, we encourage you to develop architectural guidelines and publish them to your homeowners as soon as possible and to set up a procedure for applying for approval. We can help you with that effort to whatever degree you desire – we can provide a draft after an initial meeting or review your draft. Once adopted and published you should consistently enforce your guidelines so as not to waive them. We also encourage you to keep in mind that some of your owners may not realize that the use restrictions exist and your first contact with a potential violator should be a friendly one. We wish you well in your efforts to govern fairly and effectively.