Alleged violations
Our declarant controller association approved our backyard without any plans. He did not ask for any despite having design review guidelines in our by laws and CCRs that he established. This happened in 2021. Fast forward to now, and the HOA community board is trying to giving us a violation because it goes against the DRGs. If the if the declarant never asked for plans, shouldn’t we be cleared?
Kyle
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Kyle,
Do you have any record of that approval? whether the declarant asked for plans or not is irrelevant the real issue is did you get approval for the design that deviates from the guideline. Anything, even an e-mail, or a copy of approval request? Anything that would show that you requested approval of your plan to the declarant or the ARC. The association cannot go back on approval once it was given. the fact that they have no record of that action is also irrelevant. Management companies will always assume that a homeowner made changes without approval if they cannot find documentation of that approval. The issue is that the design guidelines apply to everyone and the only way anyone can deviate from those guidelines is with specific authorization from either the board or the ARC.
Without any proof that you received that variance you may have no recourse but to bring your property into compliance. While oral commitments have in the past held up in courts, you would have to somehow collaborate that oral authorization. Your testimony alone may not be sufficient to prevail in any legal action.
Dennis
Hi Dennis,
So the long of it is this. We talked to the declarant before we bought the house in 2021 to build our dream backyard.. wall, pool, outdoor kitchen. He orally approved all of it. When we got the original email, we forgot to put In the outdoor kitchen. So we went back to the declarant and he wrote a statement for us that says:
Dear Kyle Cullen & Amber Bolas:
This letter is to affirm in writing that approval was provided to construct the backyard prior to the purchase of the home at 4491 W. Placita Roca Chica. After a review of the planned vision for the backyard, approval to complete construction with no additional reviews required, was granted by the governing authority of Las Rocas Subdivision at the time. This approval included plans to construct the wall, pool, landscaping, and outdoor kitchen with shade structure. This home was purchased ni June 2021, during the period of declarant control, and with that authority approval was granted.
Would that statement suffice?
Kyle
Absolutely. The association has absolutely no power other than what was given to it by the declarant in the declaration. The design authority was the original declarant, and the association has absolutely no power to override what the declarant specifically authorized. Make a copy of that letter and give it to the association and politely tell the move on with their lives. Decorum kept me from saying what I really wanted to say here. Never give the association any original document, you can be assured that they will conveniently lose it.
Dennis
Dennis,
Thanks for your feedback. They already looked at it and said was insufficient because plans were not attached.may have to file an ADRE HOA complaint and might have to have an administrative law judge decide
Kyle,
Have you brought this issue to the board itself? Who is rejecting this approved modification? Is it the ARC or the community manager? If it is not the full board then bring the issue to them in open session, by contesting the alleged violation. I’ve lost all faith that the office of administrative hearings and any ALJ will ever give any homeowner a fair and impartial interpretations of the law or the governing documents. They simply bend to whatever the associations attorney tells them because they have very little basic understanding of the law and absolutely no understanding of governing documents. If the board will not listen to reason and accept the declarant’s direct approval of your project than then hire an attorney and sue the association in superior court. I totally believe that you will prevail before an actual judge and the association could be forced to pay your attorney cost. This is a totally unreasonable application of the design guidelines. Case law for Arizona under a 2007 appellate court decision in Kitchukov v Tierra Rancho, established the standard duties of any board and specifically that all boards must act reasonably in the discretional enforcement of rules. Do not let this association force you to undo what you have prior approval to do.
Dennis