ARC
Hi Dennis,
Our HOA was turned over to the owners in 2021. We were managed until June 2022 when we began self-governing. (Thank you for ALL your help.) We are discovering there are many back yard “violations” according to our Design Guidelines which are stricter than members want. The board is looking into changing these with member input. The problem is the violations which predate our association being turned over to the homeowners and violations which the management company did not address. We’ve discussed “grandfathering” those in once they submit an ARC request for purposes of reselling primarily. But we have one violation which not approved in 2019, has never finished their project, which was given a 6 month deadline; and their neighbor wants it rectified.
Do you have any advice on how to proceed?
Thank you.
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Brenda,
A fundamental duty of the board is first to treat all homeowners fairly, and secondly, the association must act reasonably in using its discretionary powers for design control, creating rules, and enforcing those rules and restrictions. The total number of restrictions that can be placed on private property must be established in the CC&Rs. You cannot create new restrictions not specifically identified in the CC&Rs. Most associations have grossly abused their power and created rules and architectural guidelines over and above and beyond the scope of the CC&Rs. This is wrong, and I will work this coming session to make sure that the laws of this state clearly establish this as illegal.
What you are free to do today is decide which of the previous rules comply with the above statement and which of those you want to continue to enforce. You are also free to look to mitigating circumstances that would justify why one restriction can apply to most people but not to all people. You are required to treat everyone fairly but that does not necessarily mean that you must treat everyone equally.
As for the specific example you described my recommendation to you is that you have that owner submit a detailed modification request and timeline for the completion of that project. Your committee can negotiate on that request as they see fit but still hold firm that it must be completed within an acceptable timeline, or you will start applying daily fines until it is completed.
Whether that restriction is valid or not is irrelevant at this point because it is half-done. They must either go forward and complete it or remove it altogether. It cannot be left half-completed.
Dennis
Thank you, again, for your sound advice!