Question: I live in a community association and am a member of the architectural control committee. We are unclear about the term "Architectural Guidelines"? Are such guidelines only for guidance? Do they have the same force as our legal documents? Is disregard of a guideline ipso facto a violation? How should guidelines be enacted?

Answer: Has your committee been accused of being the KGB of your association? Unfortunately, many community association members believe that the architectural control committees are spies who are trying to uncover every single violation -- regardless of the scope or size of the issue. 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.

We have all heard about the Association that asked a homeowner to remove a statute of the Virgin Mary that was located in his front yard. We have all read about the struggles of patriotic Americans who want to fly the American flag and have been accused of violating the rules and regulations of the association.

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, and definitely before you became a member of the architectural control committee.

Most legal documents require that before a homeowner can make any improvements or alterations to the outside of their home, the plans must be submitted to a committee -- which is generally referred to as the architectural control committee. This committee is charged with the responsibility of determining if the proposed plans comply with the legal requirements of the association.

In order to avoid any confusion -- and to make sure that the committee is not acting on whim or emotion -- most associations have adopted guidelines. Sometimes these guidelines are quite specific -- for example the color of the paint that must be used, or the height of the fence. Other guidelines are rather general, and that is where the problems lie. A homeowner believes that he or she is in compliance with the general guidelines, while the committee takes the opposite position. These disputes -- if not resolved by negotiation or at the board of directors level -- unfortunately often lead to litigation. The area of architectural control is perhaps one of the most litigated issues involving community associations.

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.

The courts that have addressed these issues 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 and capricious.

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. They cannot be selectively enforced.

  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.

• 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 and have equated the committee with 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.

The Community Association Institute (CAI) has published a report entitled "Architectural Control: Design Review," which can be purchased from CAI, 703-548-8600 or on the web at www.caionline.org

Published: August 1, 2005

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