HOA Architectural Disputes
Nearly every Homeowner Association (“HOA”) has the power to regulate the appearance of the neighborhood through architectural controls. HOAs typically can decide whether homeowners may or may not make external improvements to every home in the community. The theory behind such exercise of power is that neighborhood property values will benefit from the regulation of architectural controls, by ensuring that no homeowner makes an improvement that is detrimental to a particular neighbor or to the neighborhood as a whole.
Homeowners commonly feel that the Architectural Control Committee (“ACC”) is not exercising its powers in a uniform manner, such as by approving some homeowners’ submissions but denying similar submissions from other homeowners, or by enacting rules that are unreasonably strict. Below is a brief overview of ACC powers, Arizona’s restrictions on such powers, and recommendations for dealing with HOA architectural disputes.
HOA Architectural Control Powers
HOAs usually derive their power to regulate neighborhood construction from the community’s Declaration of Covenants, Conditions, and Restrictions (“CC&R’s” or the “Declaration”). The CC&R’s commonly establish an ACC to carry out the HOA’s architectural controls. The ACC’s powers are normally broad; almost all external home improvements within an HOA must receive prior ACC approval or the homeowner faces the potential of fines or a lawsuit over such improvement.
Most CC&R’s require that all homeowners obtain prior approval from the ACC for all improvements that are “visible from neighboring property.” This means that any improvement or alteration that can be seen by a neighbor standing on a property line must receive prior written ACC approval, or such improvement is not allowed in the community. Examples of these improvements include the painting of one’s house, home additions such as an extra bedroom, enclosure of patio area, or construction of backyard structures like playgrounds or pools.
For all such improvements, the ACC requires the homeowner to submit a written application detailing such improvement and requesting ACC approval. The ACC will review the architectural applications for compliance with the CC&R’s or any other rules adopted by the ACC or the HOA. Usually these rules include a requirement that the improvement be in “harmony with the community.”
Most CC&R’s also allow the ACC to adopt architectural rules that apply to the entire community. These architectural rules are often contained in a separate document from the CC&R’s, usually called the community’s “Architectural Guidelines,” outlining all restrictions placed upon homeowner improvements.
These ACC powers are in addition to all regulations contained in city codes. Accordingly, homeowners sometimes need to obtain approval from both the ACC and the applicable city or other government entity before constructing their improvement. If governmental approval is required, the homeowner must obtain such approval regardless of whether the improvement is approved by the ACC.
Many CC&R’s include an automatic approval provisions to ensure that the ACC decides homeowner submissions quickly. Many CC&R’s provide that if the ACC fails to approve or deny an architectural submission within 30 days of the homeowners submission, the architectural submission is automatically approved. Homeowners should carefully document the date of their submission and the date of the ACC’s response to determine if their submission has been automatically approved. In a community with a 30-day automatic approval provision, the ACC cannot deny the submission if more than 30 days have expired since the homeowner made the submission.
Homeowners should review their own CC&R’s to determine if their community contains an automatic approval provision and to determine how long the automatic approval deadline is in their specific community.
Arizona Restrictions on Architectural Decisions
There are limits to an HOA’s power to restrict improvements in its community. Certain Arizona laws overrule any restriction contained in the architectural rules. For example, flags, political signs around election time, for sale signs, children at play signs, and solar panels generally must be allowed in a community regardless of the provisions contained in the community documents.
Furthermore, Arizona law requires HOAs to act fairly and reasonably in the exercise of its powers. HOAs are not permitted to arbitrarily enforce its rules against certain homeowners while permitting other homeowners to violate the same rules. Most CC&R’s contain anti-waiver provisions that permit the HOA to not enforce certain rules without waiving its right to enforce the same rule at a future time; however, Arizona law still requires HOAs to act fairly and reasonably in making its discretionary decisions, and HOAs cannot selectively enforce its rules against disfavored residents. Also, communities without anti-waiver provisions in their CC&R’s may forever waive their right to enforce such rules if extensive amounts of time have expired since the HOA last enforced a certain rule.
ACC power varies at some extent in each HOA. Any homeowner who is considering making external improvements to their home should review the community documents, specifically the CC&R’s and the Architectural Guidelines before beginning construction. If there is a potential conflict with the ACC, the homeowner should contact the ACC to determine if a compromise can be reached.
This article is not intended to be specific legal advice. It only provides general legal information. You should consult an Arizona licensed attorney if you have a legal issue. The Bainbridge Law Firm, L.L.C., is experienced in this area of law and are available for consultation. You may contact our Phoenix office at 602-902-1930.