February 24, 2025
Does a Homeowner Need an Attorney to Manage a HOA Architectural Application?
Anyone who has ever found themselves in an intractable covenant enforcement dispute with a condominium or homeowners association gets to a point where they must choose between tearing down whatever they built or hiring an attorney to defend their interests. This decision arises because the HOA will often use a lien to encumber the property with a fine or file a lawsuit to ask the court to order the homeowner to remove or alter the thing they find objectionable. Homeowners accept such risks (knowingly or not) when the commence a project without HOA approval or try to navigate the architectural approval process without an experienced guide. One ought not to have to hire an attorney for a HOA architectural application. But there are many situations in which hiring an attorney to support them is necessary to protect their interests. This blog post describes several situations in which the threat of HOA legal action makes such assistance adventitious:
Sheer Size of the Construction Project. If a homeowner wants to buy some pieces of wood or stone and install a decorative planting bed in their front yard, replace a mailbox with a different size, or paint their front door a different color, when they may decide not to use an attorney. In the event of a dispute, the homeowner can simply revert the appearance of the lot to the way it looked before, instead of spending money on an attorney. This option of self-protection is not so easy if the homeowner undertakes a major project such as a tear down rebuild, a major addition, or construction of a large pool, cabana and surround in the back yard. Such projects are expensive and difficult to remove or remodel once completed. If the homeowner must borrow money or dip into long term savings, then that is a sign that attorney assistance is appropriate. This is to avoid a situation where the project could become completely unaffordable if it becomes necessary to make structural changes or defend a lawsuit. The risk of such circumstances arising is increased if the contractor is not licensed, the project does not have county approval, or the contractor was chosen because their bid was unusually lower than the others.
The Homeowner and the HOA Already Have a History. Some homeowners have positive relationships with their HOA boards. They do not have much difficulty working with them. If there are questions or concerns, they get along well enough to resolve them without aggressive action by either side. For other homeowners, the relationship between them and the manager or president soured years ago and remains difficult. Or there may be a neighbor who objects to everything and threatens to sue them or the HOA if they find something objectionable with the way the lot is used or improved. Sometimes the homeowner will submit an application or respond to a request for additional information, and the HOA will refrain from responding, for a variety of reasons. In such an instance, the homeowner needs to know whether she can plow ahead with the project or needs to communicate further. There are some unit owners or homeowners who need to have an attorney represent them on an ongoing basis because the parties’ relationships have deteriorated such that things work better if they just interact through their attorneys. In recent years it has become more common for officers, directors, managers, committees and homeowners to sue each other for discrimination, slander, interference or harassment. The homeowner may have an intractable dispute with their HOA for no fault of their own. If the homeowner and the persons who make the approval or enforcement decisions for the HOA have a history of intense conflict, the homeowner should seriously consider having an attorney help her navigate the architectural approval process.
The Subject Matter is Complicated. Some HOA covenant enforcement or architectural control issues are simpler than others. Sometimes the recorded restrictions are clear and on point to the particular question raised by the application. If the declaration or bylaws contain general language, sometimes the architectural guidelines, handbook, or rules and regulations contain understandable rules that are legally well established. Sometimes the answer is apparent simply by looking at how such things were overseen by the developer on other lots. However, with many applications to alter the construction or the use of a property it is unclear whether there is a standard that the HOA can apply, whether that standard is reasonable, and whether the HOA properly exercised their architectural control powers. It is common for the developer to establish a modest set of rules and an architectural control committee to oversee certain concerns, and later the leaders, managers and attorneys want to enforce more stringent practices and policies. Sometimes the HOA will use generally worded standards and approve a generally worded application and later adopt a stringent approach when what is actually built falls within the general parameters of the application but includes something that is viewed by some as an eyesore. It is all too human for people holding power to devise new prohibitions after something is done that causes a sense of disgust. The courts of Virginia require HOAs to exercise their design control powers reasonably and within the scope of their authority. When the recorded restrictions only discuss a few required or prohibited things, and give the board the authority to adopt additional rules, and allow the committee to decide what is approved, does the silence of the declaration on a particular topic mean that the HOA gets to regulate it or does it mean that they lack such authority to govern such things? These are the sorts of thorny problems which can result in protracted litigation and are suitable for attorney review.
Many HOA board or committee members view it as their responsibility to protect the community from the actions of some “undesirable” person who wants to use their home for a business purpose, install a swimming pool and host parties with added noise, or spoil the architectural homogeneity of the subdivision. Such people typically have an expansive view of the scope of their own power. Many HOA leaders do not believe that they are constrained by provisions of the governing instruments or state law. To them, what matters is what kind of community they think that they have to protect, and as the incumbent leader it is up to them to decide whether something is permissible. Homeowners should not have to pay an attorney to make reasonable alterations to their homes. But they often do, because legal documentation assigns to the HOA enough power to make the appropriate exercise debatable. The contractor and the designer may not tell the homeowner about a potential legal issue because that is not what they are being paid to do, and they do not want to say anything that could prevent themselves from making a sale. Seeking assistance for navigating such a process usually means hiring an attorney (as opposed to asking a friend) because the HOA has their own paid professionals to vindicate its own legal powers. A friend usually has only done these things once or twice. Ideally, the homeowner would get sufficient legal support on something at a point in the process where the information is most effective, so that the bulk of the money is spent on maintaining and improving the home and not on acrimonious disputes or tearing something down and redoing it.
