By Peter H. Harrison and Tyler S. LaMarr
Architectural Control is one of the key reasons people either choose to live in or run from an HOA. Some people appreciate the HOA’s ability to enforce architectural controls via an Architectural Control Committee (“ACC”); whereas, others resent the thought of another organization telling them how they can modify or decorate their home. When these preferences are mismatched, it often leads to conflict.
Architectural controls include such things as the general design of a home, exterior finishes, color, landscaping, fencing, window covering, sheds, etc. Those who appreciate them, point out that compliance with these standards dramatically increases property values and ensures a beautiful community for the owners.
Owners opposed to architectural controls feel as though they unfairly target HOA members, and create arbitrary or even silly standards. I have heard residents refer to their ACC in derogatory terms such as “gestapo”, “Nazi”, “commie”, “crazy”, or “belligerent”. Some of these owners feel as though an ACC is antithetical to the ideals of American home ownership and the United States Constitution, not realizing that the Constitution generally does not apply to private contractual relationships in this context.
Effective ACC Procedure
No matter the viewpoint, an HOA should and can implement effective procedures to reduce conflict. Over the years there have been multiple media articles referencing methods to properly manage an ACC or criticizing the role of an ACC. These articles include opinions from architects, constitutionalists, lawyers citing national case, and property managers who deal with the day to day realities of such policies. While these articles effectively contrast general policy consideration, the following practical tips will help an ACC properly function:
Tip # 1 – Follow your governing documents and form a committee.
Tip # 2 – Engage professionals such as architects, attorneys and managers to help draft appropriate architectural control guidelines.
Tip # 3 – Follow and enforce the guidelines in a uniform and clear manner.
Tip # 4 – Communicate with the owners and provide notice of the requirements and guidelines.
Tip # 5 – Monitor construction, and architectural changes and take early action to correct any deviations from the guidelines.
Enforcement – Case Law
The case law in Utah is pretty clear that an HOA can indeed enforce standards via an ACC. In Swan Creek Vill. Homeowners v. Warne, 2006 UT 22, ¶ 44, 134 P.3d 1122 the Utah Supreme Court determined that an HOA’s governing documents constitute a contract between owners and the HOA. In Rowley v. Marrcrest Homeowners’ Ass’n, 656 P.2d 414 (Utah 1982) the Utah Supreme Court recognized an HOA’s authority to enforce restrictive covenants relating to construction and unapproved building plans where the violating owner had notice of the restriction but nonetheless proceeded with construction. Freeman v. Gee, 18 Utah 2d 339, 423 P.2d 155(1967)., made it clear that it is the Court’s duty to enforce the intentions of the parties as expressed in the plain language of covenants.
The case law focuses on the enforcement of the covenants and governing documents. Thus, it is essential for an HOA to have a clearly outlined policy of specific guidelines for the ACC to enforce. An HOA that has a thorough set of guidelines could have a set of documents that consists of over 30 pages of both process (the method and manner of submitting an application, follow-up throughout the construction process) and form (what the structure will look like, including finishes). Once an HOA has a policy in place, it is important that the HOA uniformly follows that policy.
An important consideration in the enforcement battle over ACC guidelines is the fact that generally the prevailing party will be entitled to an award of attorney fees. Pepperwood Homeowners Ass’n v. Mitchell, 2015 UT App 137, ¶ 12, 351 P.3d 844. In Kenny v. Rich, 2008 UT App 209, ¶¶ 42-43, 186 P.3d 989, a Utah court awarded attorney fees to an HOA who was obligated to sue to enforce architectural restrictions. I have personally been involved in representing HOAs who have both enforced their guidelines and recovered substantial attorney fee balances as a result of an owner’s noncompliance. In some cases, the expense and stress of litigation could have been avoided if the non-compliant owner (or their attorneys) could have set aside the emotions and made a decision on the case law and contracts.
In the event of a violation, it is important for the HOA to inform the owner of the potential liability that will result if the HOA has to take enforcement action. This simple step can often prevent the necessity of the HOA taking additional judicial action to correct the issue.
An effective ACC can be integral to the long-term function and cooperation of the owners within an HOA. If you have questions regarding your ACC or the proper implementation of an ACC, please don’t hesitate to contact any of the attorneys at http://www.millerharrisonlaw.com.
 http://www.charlotteobserver.com/living/home-garden/michael-hunter/article9097763.html, http://communityassociations.net/cacondoguru/hoa-board-architectural-control-control/, http://www.washingtonpost.com/wp-dyn/content/article/2007/09/07/AR2007090701143.html, and http://articles.chicagotribune.com/2001-05-20/business/0105200220_1_architectural-single-family-homes-board-and-committee.