Question: We live in a homeowner association and I have just been appointed to the architectural control committee. Some of the homeowners do not believe we need such a committee, and many owners just ignore the process when they make exterior changes.

Our legal documents require advance approval by our committee before any changes or additions can be made on or to their property. Many people do not understand the concept of belonging to an association and when we try to explain, they become hostile.

How do we get homeowners to understand that this is not unique to our development?

Answer: Most community associations throughout the country have some form of architectural review committee. Although the scope of these committees varies, the general theme is that in order to keep some semblance of uniformity and balance within the association, unit owners must receive advance approval from a committee before any exterior work is done.

However, there are owners -- whether in a condominium or in a homeowner's association --who believe that such control is not only unnecessary, but is an unlawful impingement on civil liberties. Many homeowners have also had negative experiences with their architectural control committees; we have all read of the cases where these committees acted arbitrarily and without any common sense. Just recently, as an example, there was a story in the Religion Section of The Washington Post about a homeowner who was asked by his Association to remove a statute of the Virgin Mary that is located in his front yard.

However, design review within an association has at least two purposes: To establish and preserve a harmonious design for a community and to protect the value of the property.

When you buy into a community association, right or wrong, you must understand that you have opted for community living. Decisions cannot be unilaterally made, nor can the rules and regulations of the association be unilaterally ignored.

One might disagree with the need for external uniformity, for example, but the fact remains that if the association documents require such external uniformity, that is the law of the association and is binding on its members. You should read your association documents carefully, to learn the scope and purpose of the architectural review committee. Indeed, you should have read this material before you decided to purchase into the community.

Having discussed the function and purpose of architectural controls, however, boards of directors of community associations must also recognize that the architectural control committee cannot be a dictator, arbitrarily rendering decisions.

There have been numerous legal battles over architectural control. The courts that have addressed this issue have made it clear that covenants are valid and enforceable provided there are clear policy guidelines establishing the overall standards. For example, it is not enough to say that owners may not make changes to the exterior without first obtaining the written approval of the board or the architectural control committee.

If no specific guidelines have been developed, neither the unit owner nor the review board will have any objective standards by which to judge the proposed external change. And without such standards, even the most well-intentioned committee can be accused of being arbitrary.

Boards of directors must establish fairly specific guidelines, and if those rules are not already in your association documents, they should be drafted and approved by a majority of the homeowners.

Your committee also should be aware that the following will be valid defenses by a unit owner when the board tries to seek enforcement of the architectural standards:

• Arbitrary and capricious actions have been taken. The architectural standards must be applied fairly and consistently, across the board and in good faith. It is improper for a board or its architectural review committee to pick and choose the enforcement of the covenants.

• Delays, or "laches," have occurred. This means that the board has permitted a lengthy period of time to elapse before taking action against a unit owner. For example, one court has ruled that a board's six-month delay in filing suit against an unauthorized fence barred the board from enforcing the covenants.

  If a unit owner is in violation of the architectural standards, or at least the board believes there is a violation, the board must begin prompt action to assure compliance of the standards.

• A waiver has been granted. Basically, if the board fails to enforce a covenant in the case of one homeowner in similar situations, it may be prohibited from enforcing the same standards against another homeowner.

• Too much time has passed. Often, the association documents require that the committee make a decision within a specified period of time (for example 60 days from receiving the request) or the request "will be deemed to have been approved." Since you are on the committee, make sure that you read your documents and follow the language carefully. If you must act on an owner's request within 60 days, it is not acceptable to reject the owner on the 61st day.

Because this is community living, there has to be a give and take not only by the homeowner, but by the board as well.

All too often, architectural control boards have been accused of asserting dictatorial powers. Indeed, in one large local community, the architectural control committee has been referred to as the "KGB." According to one report, committee members were often seen "prowling around the neighborhood with their clip boards, looking for violations."

Often, boards (or their architectural control committees) become obsessed with minor, petty violations and lose sight of reality and common sense.

A considerable amount of money has been spent by both homeowners and boards of directors on litigation that should never have been brought.

Boards must sit down with the homeowner who is alleged to have violated the architectural standards and try to work out an amicable resolution of the problem.

In the final analysis, boards and their architectural control committees must be firm but must also be reasonable and flexible.

For more articles by Benny Kass, please press here.

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Copyright 2001 Benny Kass. Posted by Realty Times with permission.

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Published: August 27, 2001

Use of this article without permission is a violation of federal copyright laws.