July 2016One of the underlying functions of any community association is to preserve its semblance of uniformity. This responsibility, which is typically set forth in an association’s governing documents, is generally assigned to the board, or a board-appointed committee, such as an architectural control committee or an architectural review committee. The board or committee ensures compliance with the association’s architectural/design guidelines by evaluating an owner’s proposed improvement or modification to the owner’s unit or lot, or even to the common elements or common areas.

In condominium associations, the primary focus is usually on internal modifications, items that may be visible from the outside, or improvements that could affect the common elements (e.g., hardwood floors, window treatments or satellite dish placement). Homeowner or townhome associations, on the other hand, are often only concerned with exterior changes (e.g., painting, landscaping or fence installations). Regardless of the type of association, the basic principles and methods for architectural control are the same for both.

An association’s governing documents will outline the procedure for architectural control. Usually, the procedure requires an owner to submit a written proposal to the reviewing authority for review and approval. It is up to the reviewing authority to examine and respond to any such request with timeliness and consistency. Timeliness is important because most provisions will limit the number of days an association has to respond to a proposed modification. Failure to reply to a submission before the deadline could lead to an automatic approval of the modification, no matter how much it deviates from the community’s standards or guidelines.

Consistency is equally important. To illustrate, the reviewing authority should not be approving one type of modification for one owner and then later denying the same modification for another owner-at least not without a valid reason. There has been a lot of litigation over this issue, and the courts will overturn architectural control decisions if they seem arbitrary and capricious. This is why an association’s guidelines and procedures must be applied fairly across the board and in good faith. Otherwise, the reviewing committee may be accused of selective enforcement and open itself up to legal disputes with contentious owners.

It is also important to remember that neither an association’s board nor board- appointed committee is a substitute for the local municipalities. Many governing documents will address this issue, but if not, an association should inform its members that association approval of the improvement or modification does not equate to approval from the local municipality’s building department, and vice-versa. An association cannot assume jurisdiction over local building codes and permits, so it should avoid potential liability by reviewing proposed modifications for aesthetic purposes only.

Finally, associations and their management companies should prepare for violations of the association’s architectural control policies and procedures. The most common excuse will probably be ignorance, but once the dust settles, the first question should be: would the modification be acceptable if the owner had followed the correct procedure? If so, the association should allow the modification to stay and determine the appropriate sanction. If not, the association should act quickly to either try to put a stop to the ongoing work, or if it has already been completed, begin the violation process in accordance with its governing documents. Once the violation process has been triggered, the board, rather than the reviewing committee, is ultimately responsible for pursuing any enforcement action on behalf of the association. In the final analysis of any architectural control issue, associations should be firm, but they also need to apply reason and flexibility in some situations.