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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.
Naples, Florida, Hot Destination
Continues
Sizzling Home Sales
"Naples continues to be a destination for tourists,
retirement, and investment," says Realtor Dan Buckley.
"Gorgeous sunsets, fine dining on 5th Ave South, the
arts, golf, boating and beaches. Did I leave anything
out? Experts continue to predict, 'The end is here,
and the real estate bubble is about to burst.' Well,
they have been writing and reporting that for the last
10 years or more. Sure, they will eventually get the
downturn in the real estate market right somewhere in
the country and say, 'I told you so!' But, southwest
Florida relies on people that are looking for a
vacation home, retirement home, or an investment
property that they will rent and use themselves when
they are ready for retirement."
Buckley explains, "We are now half way through 2005
and the real estate market in southwest Florida
continues to be a seller's market. I do see a slow
down in listings and a few price reductions, but for
this time of year that is the norm. Many properties
are resales from deals of a year or two ago and are
now being sold. These properties are still a good
value for the next owner even though the appreciation
rate may not be as rapid as in the past two years."
Realtor Audrey Pullos says, "The city of Naples offers
some of the finest homes in the world and lifestyles
to match! Naples boasts of magnificent high-rises,
quaint Old Florida cottages, and modern Mediterranean
villas. Since Naples has been bestowed with the honors
of being voted one the "Best Beaches" in 2005 to
vacation and Naples Gulf & Beach Resort has been voted
the number one place to vacation, people have been
flocking to our shores. Hence our popularity is rising
again, which in effect increases the demand for
housing. Whether it is the baby boomers, seniors, or
families purchasing a second vacation home, real
estate is still a very hot and expensive in Naples.
She advises, "In fact, the latest numbers are in from
the Florida's Realtor Boards/Associations for
single-family existing home sales from March 2005.
Naples has already seen a 19 percent change in their
median sales price! Current single-family homes on the
market today range anywhere from $500,000 to well over
$22,000,000 depending on your location and lifestyle
choices. A recent search on our multiple listing
service also shows that condos and attached villas
that are now available for sale range anywhere from
the $170,000's to well over $11,000,000. Amazing!
Also, with the low interest rates, and the savvy
buyers who know how to purchase real estate with their
self directed IRA's the purchase power and money is
there and sales keep escalating."
"Naples has many things to offer people from all walks
of life," Pullos adds. "You can enjoy the arts,
culture, entertainment, the zoo, waterside dining and
unique shopping & dining experiences along 5th Avenue
and Third Street. Discover the "7" pristine beaches
along with the "14" beautiful parks. In Naples, golf
is a particular favorite with over 60 courses. Naples
has the highest ratio of golf courses to golfers in
the United States. Naples also has a progressive
medical community featuring excellent healthcare
facilities.Our schools are top notch in the community
and many of our local sport teams win top awards. Once
you come to Naples and enjoy the lifestyle you are
hooked!"
Agrees Realtor Carol Wilsey, "This little southwest
corner of Florida was known by only a fortunate few
for a long time ... now, because of our closeness to
the warm Gulf waters, constant balmy breezes, and
multitude of wonderful golf course communities, the
rest of the world has discovered us! Come see for
yourself."
"Amazingly, even though "season" is coming to a close,
the prices on all types of properties have not showed
any sign of impending reductions," advises Wilsey.
"And, there is still a tremendous shortage of
available inventory to sell. This creates an almost
frenzied atmosphere when a new property is listed at
current market value. This past year, single family
home prices have risen a whopping 28 percent in
Naples, and between 15 and 20 percent in neighboring
Bonita Springs and Estero. Now we are seeing even
bigger jumps in prices. We all know that the market
will need to slow down a bit, but when?"
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