Part and parcel of living in a managed community or homeowners association is abiding by certain guidelines regulating what one can or cannot do to the exterior of their property. Nearly all HOAs have rules and regulations regarding neighborhood aesthetics; some more stringent than others. These rules lay out what types of landscaping elements association members can put around their homes. Association boards can prohibit members from erecting flagpoles or installing signs and fences, or from placing ornamental decorations like lawn jockeys or plastic flamingoes in their front yards. In some communities, folks can't paint their townhouse chartreuse or magenta—much as they may love the color—because that would violate the aesthetics of the community in which they live.
All this may sound well and good, but how much aesthetic regulation is too much, and what, exactly, are your powers and limitations as a condo association board regarding the regulation of architecture and landscaping in your community? How should you exercise your authority—and when should you back off? And where can non-board association members go to find out how architectural regulations might affect them?
Carved in Stone
For that last question, you usually don't have to look farther than the packet of governing documents and association rules every new homeowner receives when they buy their place and move in. The governing documents of your community should detail the limits, powers, and procedures vested in your condo association to oversee and regulate the community's overall appearance.
That seems simple enough; but in drawing up their architectural regulations, associations—even those with only their community's best interests in mind—often draft very strong controls, allowing individual owners and residents strictly limited alteration and renovation options and enforcing those regulations through inspections, fines, and formal procedures to follow before alteration projects are approved. While the extent and nature of permissible alterations and renovations vary between different communities, many associations choose to run a pretty tight ship. But on what basis does the board make those decisions—and how tight is too tight?
According to attorney and former Community Associations Institute (CAI) president J. David Ramsey and attorney Ronald Perl of Hill Wallack in Princeton, the standard for enforcement of aesthetic regulations is to ask if the regulation can be "reasonably applied." This is the standard that is maintained when cases go to court, and there have been several cases ruled in favor of owners who have altered their property against regulations; if they can prove that the alterations have no negative impact on the community, enforcement of the regulation may very well be found unreasonable, and therefore without legal merit.
Perl points to one case in which an owner installed ceramic tile on the floor of his concrete balcony. When his association demanded removal of the tile because the owner had made his improvement without asking for permission, the judge declared the association's actions to be an "unreasonable application of architectural covenants." The tile, the judge explained, caused "no physical harm to the common elements" of the community, and was therefore permissible.
Considering how much power associations have over such decisions, as well as the ever-increasing cost of litigation, it may be wise to appoint an architectural or design committee made up of a few board members to work out the rules and decide how they should be enforced. Stan Rothenberg, who has served for 35 years as a property manager for C&R Realty and Management Co. in Englewood Cliffs, recommends no more than four or five people on an architectural committee. A smaller group can usually handle decisions more efficiently, provided that the members are, in Rothenberg's words, "effective and informed,"while larger groups, Rothenberg points out, often suffer from vituperative personality clashes or get bogged down in procedural delays.
But it's not enough just to have a half-dozen eager committee members ready to battle lawn-gnomes and purple houses, says Rothenberg. In order to handle their decisions efficiently and responsibly, associations must be educated in pertinent law, informed of the regulations currently on the books in their HOA, and knowledgeable of the details of each situation that arises.Rothenberg—along with Ramsey—also suggests that when possible, architectural committees should include actual professionals in the fields of architecture, building, design, and so forth, since key decisions can often benefit from an expert's knowledge.
Checks on Power
Yet if architectural professionals serve on an architectural committee, doesn't the situation leave room for conflict of interest? Might not some professionals—given the degree of power condo associations often have—get carried away with their own mixture of power and experience, and start imposing their personal aesthetic tastes on a hapless community? While Rothenberg admits to the possibility, he also points out that, "Avoiding such conflicts of interest is usually a simple matter of interviewing association members before allowing them on the architectural committee."
As for regulation enforcement, Rothenberg believes that the need to "strong-arm" recalcitrant homeowners is rarely necessary. Education and mediation, he says, is more important than forceful tactics. Just as an educated association is vital to efficient regulation, so is a well-informed community. There's nothing wrong with letting owners and residents know why enforcements and rules are in place, he says, the more they understand the rules and the reasons behind them, the more effective regulation will be.
While Rothenberg admits that renters—who typically have less of a long-term investment in their community than owners—sometimes require a more authoritative approach than residential owners, he also insists that as long as the renters are kept informed, confrontation can usually be avoided. "Whether they own or rent, people are generally caring for their property," Rothenberg explains—which is why informed residents so rarely object to rules they know to be in the community's best interest. And, adds Rothenberg, there are many ways to keep your community educated: bulletin boards, flyers, e-mail lists, newsletters, and monthly statements can all be used to inform or remind owners and residents of policy. Some communities are so far along technically that the even have their own Web sites and in-house television stations, he says.
Should associations meet on a regular basis, or only when situations arise? While Rothenberg sees nothing wrong with special meetings for special issues, he also believes that meetings should be held on a regular basis because associations "should be in touch with what's going on in a community; there are always issues to discuss."
Following the Rules
Satellite dishes, deck extensions, and property dividers are just some of the seemingly benign property "improvements" that might adversely affect a community. Putting up property screens affect the flow of air. Closing in balconies might block breezes and light from the balconies of your neighbors. Rothenberg recalls a situation involving a couple, who bought a high-rise condo that had a magnificent view of the New York skyline across the Hudson River. Now their view is slowly being blocked by a bunch of young trees growing up in front of their unit.When the couple demanded that their condo association cut down the trees, the association revealed that the trees are on property maintained by private owners, not by the association.Should the association get involved, asks Rothenberg? It did when the trees started to also block a board member's view.
This little anecdote is more than just another example of everyone looking out for their own best interest; it's also an illustration of how seemingly innocent improvements—erecting a fence here, growing a couple of trees there—can become politicized when views are blocked, or someone's enjoyment of their property is somehow compromised. The story is also an object lesson in how association decisions sometimes work:it's not always about regulation. "Sometimes it's about how loudly people stamp their feet," Perl exclaims.
As the trees in the embattled condo block the views of more and more residents—including board members—the likelihood that the trees will be cut down increases, regardless of the exact regulation details.
Decisions are also sometimes determined by whether or not procedures were correctly followed. As an example, let's say Owner A wants to do some landscaping on some outside common area, and decides that a standard flowered shrubbery wall about eight feet tall would make a good property screen. The application of the regulation is sketchy, and conflict arises over Owner A's right to use common area for a purpose not expressly allowed or forbidden in the regulations versus Owner B's right to the unobstructed view that was considered an aspect of her property, when she bought the place. In the absence of hard-and-fast rules, the association's decision might very well hinge on whether Owner A has followed proper procedure to the letter in getting his or her landscaping project done, or whether corners were cut in the process.Was the association approached beforehand and all the necessary paperwork filled out?
As another example of actual litigation, says Perl, consider the case of an elderly woman living in a central New Jersey condominium development, who decided to replace her standard windows with windows that were a style completely different from the windows in the rest of the building. When someone complained that the visual discrepancy negatively affected the community's aesthetics, the woman's defense was that the property manager had given her permission to make the change.Yet according to the condo association's regulations, only the board has the right to give such permission—not the property manager.
Furthermore, the condo board insisted, the woman must have known this aspect of the regulation, since it was clearly detailed in the governing documents she received when she moved in. The case dragged on even after the woman's death and ultimately, her estate was forced to change the windows back at its own expense. The case illustrates one of Perl's key points: "Visual harmony is a legitimate association purpose."
Still, to avoid the expense and hassle of halting or reversing a major project, it is best to be aware of regulations and the law, be careful to follow correct procedure, and be mindful of the impact your improvements may have on your neighbors.After all, improvements are only improvements if you're allowed to keep them.
Alexander Higle is a freelance writer living in Connecticut.
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