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Don’t give in to architectural elitism

DEAR BENNY: We bought a house in August 2009 and for one year our designer/architect was drawing the blueprints and obtaining the local city approvals.

After we were approved, we started construction. Now we are stuck because our architectural review board does not approve of the exterior doors.

We have shown the board many options, and for every single door our ARB chairman is telling us that it is not appropriate and he does not like the door because it does not have enough of a traditional look.

We complied with every single exterior design he wanted, which made our project much more expensive. Right now we are facing a stalemate. Please help us. — Marianna

DEAR MARIANNA: I assume from your letter that you live in a homeowners association that has a requirement that any new or remodeled construction on the outside of the house must be approved by the association’s ARB.

This is a controversial area throughout the country and there has been a lot of litigation over the rights and responsibilities of such an architectural review committee.

Taking the ARB’s position first, there is a strong feeling among many homeowners that they want uniformity in their neighborhood. They don’t want McMansions built next door, they don’t want houses to be painted pink or purple and they want all fences to be uniform.

There is some merit to this position, but in my opinion many ARBs go too far in enforcing what they believe to be their powers.

According to many court decisions, here are some arguments you can make to the ARB in your favor:

1. Is the ARB being arbitrary and capricious? Is the ARB going after you and not other owners who may have similar situations? According to most courts, the architectural standards must be applied fairly and consistently and in good faith.

2. Have delays, or “laches,” 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 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.

3. Has the association or the ARB promulgated written guidelines? If not, a judge could find decisions of the ARB to be arbitrary.

4. Has a waiver 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.

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

Finally, you should review your legal documents. Typically, there is a time limit imposed on the review committee in which to respond. If you made a request for construction, and the ARB did not promptly respond within the time restraints in your legal documents, you may have a good case.

I would threaten the ARB that you will have to file suit if you cannot reach an acceptable resolution within the next two or three weeks.

DEAR BENNY: You were wise to offer only general advice to a reader trying to avoid probate for her children.

If she is a California resident, her mobile home is treated as personal property unless she owns the underlying real property. The title is held through the Department of Housing and Community Development and the title is more akin to that of a motor vehicle.

Just thought you’d like to know. — Joan

DEAR JOAN: The laws differ from state to state, which is why I usually have to give only general advice and urge my readers to consult with their own legal and tax counselors.

To my knowledge, mobile homes in some states are considered real — not personal — property.

Even the federal income tax laws have different impact in the community property states out West.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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