HOA President here – Question
Good afternoon,
I recently became president of a small HOA, and I am a man of the people. Who wants everything to be fair and resolved internally if possible.
We have a lot that was bought by a consumer on Zillow back in November of 2021, but originally listed in May of 2021. He did not build this. He bought it while the declarant was still in control of the association. It did not transfer over to the community until summer of 2022.
The ARC made him remove his backyard gate/fence per our AR guidelines and replaced it with a stucco wall. He received this violation before I came on and now, they are telling him he needs to paint the whole house since the LRV (Light reflective Value) is too high and not under the proper AR Guidelines.
My question is this. Is this a legal violation? Everything was approved before the house went on the market. (not sure how much proof can be given going back 4 years) It was sold to him by the realtor, not the declarant himself. I just feel like we are fucking over the homeowner. He had no choice in the decision of the original color.
With Kind Regards,
Kyle
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Kyle,
Unless the restriction is specifically identified in the CC&R’s the association has no authority to establish a rule that creates a restriction on private property. Including architectural guidelines. The CC&R’s are the sum total on all restriction on private property. While the association has an implied power to create a rule that protects the property value of adjacent homes general pint color and ARV has absolutely no impact on property value. While your CC&R’s probably talk about architectural guidelines in general terms, if they add any restrictions that are not specifically stated in the CC&R’s they are invalid and unenforceable. While most HOA attorneys will tell you that you can create any rule you want they are all absolutely wrong in that guidance. The ARIZONA SUPREME COURT ruled
in 2022 that association could not make any change to the CC&R’s that would creat a new restriction or materially change a restriction that the original CC&R’s did not provide adequate notice to any homeowner without the unanimous consent of all homeowners. If you cannot change the CC&R’s without unanimous consent of the owner you surely cannot create a new restriction on private property via rule that no homeowner has any say in. The key to this is the exact language of the CC&R’s. There is absolutely no implied design control power unless it is a specific restriction in the CC&R’s.
The paint color was there before the current owner bought the house. It is totally unreasonable for any association to cite a violation to a new homeowner that was present and not cited on the owner that painted the house in the first place. Even state law has a statute of limitation of one year. For these associations to act reasonably in their discretionary enforcement power they are limited to the homeowner that created the violation. Because they filed to cite the alleged violation is no excuse for trying to enforce a restriction that the current home owner had no party in creating.
Dennis
Hi Dennis.
Where can I find that state law where it regards to statutory limitations of one year when it comes to the paint violation?
Kyle
Kyle,
Unless any state statute has a specific statute of limitation the general rule is one year. This comment was relative to state statute not enforcement of governing documents. The comments relative to enforceability of governing g documents come from case law not statutory law. Specifically Terra Rancho v Kitchukov and Cambria Ranch v Kaley. There is also a Nevada Supreme Court decision that is relevant and applicable.
Dennis
Kyle,
Unless any state statute has a specific statute of limitation the general rule is one year. This comment was relative to state statute not enforcement of governing documents. The comments relative to enforceability of governing g documents come from case law not statutory law. Specifically Terra Rancho v Kitchukov and Cambria Ranch v Kaley. There is also a Nevada Supreme Court decision that is relevant and applicable.
Dennis