May 18, 2020
Most homeowners’ associations require owners to submit a Design Review Application Form to approve changes to exterior features of their lots, be it a deck, patio, fence, driveway, or addition. Some even require approval to remove or add trees or change the grading. Owners often misunderstand their rights because the Design Review Application form includes language that obscures the issues or confuses them regarding their obligations to the HOA. The form may not adequately inform them of the criteria that the committee ought to use to evaluate the submission. The application forms provided by the community manager may call for the owner to sign off on things that the HOA does not have any authority to demand. These forms play a prominent role in standardizing the process of controlling what people do with their land or to discourage disputes among neighbors.
Some of my readers may ask whether it makes sense, as a matter of policy, for non-governmental boards or committees to have the authority to make rules or exercise discretion to veto exterior changes to private property. Those are good questions that I have touched upon elsewhere on this blog. The focus of this article is on the interests of a lot owner navigating the HOA design review process or opposing a neighbor’s improper application.
Sometimes, HOA approvals or denials of design proposals resurface years later. These decisions ordinarily become a part of the HOA’s file (to the extent any records are kept) for that lot. Owners ought to pay close attention to the wording of these forms so that they can better protect their own rights in the event of a dispute or to challenge an objectionable application by another member.
Community associations law is about making, changing and supplementation of rules regarding the development, alteration, and maintenance of property, be it a common area or owner’s lot. A developer creates a HOA by encumbering property in the subdivision by recording a declaration of covenants. These contain rules about what lot owners, or the board of directors can or must do to use or maintain lots or common areas. Those rules may be changed by a formal amendment process. Also, the Property Owners Association Act allows boards to supplement the rules in the declaration with an architectural handbook, to the extent that the declaration establishes rulemaking authority. Newer declarations require an owner to first apply to the board or a committee to obtain approval for changes, even where they do not seek a variance from the covenants or rules. The HOA may be exercising discretion that goes beyond applying established general rules to a new application. These committees often seem to be more case-by-case legislating and less like ministerial gatekeeping. Many owners complete, sign, and submit the Design Review Application Form without considering the scope of the HOA’s authority over use and improvement of their property. This is risky since these forms often include requirements inconsistent with, or absent from, the HOA declaration.
Design Review Application forms vary widely from HOA to HOA, but they mostly keep to the same pattern. In Northern Virginia, there is a prominent law firm that represents many HOA’s and condominiums. A variation of the Design Review Application Form they prepared is the one many managers provide to lot owners. This Design Review Application Form is not based on any statewide laws (and it does not have to). Consideration of these forms illustrates how these HOAs exert control over their members.
First, the statements and disclaimers included in the language of the form may not accurately reflect the governing instruments of the subdivision. The text may mislead the lot owner regarding her rights and responsibilities. However, misleading language in the form presents added problems. The lot owner is expected to sign the Architectural Design Review Application form. The owner may later be accused of having waived certain rights that she had otherwise. Legally, the Board cannot force a lot owner to forgo her legal protections or to enhance its own power without the lot owners’ consent. Many HOAs use these little forms to frame issues in a way that is friendly to their own interests.
The Design Review Application Form provides space for the lot owner to summarize the changes. The declaration may in fact leave certain improvements, such as those for vegetation or repairs that will not change the appearance, to be “by right.” Lot owners ought to consider whether any application is necessary at all. To a lot owner with little experience, it may be unclear what level of detail is appropriate. It is common for architectural committees to approve applications that are unwarranted or incomplete or to deny ones that are sufficient. The declaration and handbook may require a specific description of the proposed location, color, design, features, illustrated in a written summary, a marked-up survey plat, a design from a builder or engineer, photographs or drawings of products or materials. To the extent that HOA architectural approval is legally necessary, the owner ought to put in the application what is necessary to fulfil the requirements indicated in the declaration. The owner wants to place himself in a position where, after the project is completed, the work cannot be successfully challenged on the basis that a material aspect of it was not disclosed or identified. From a lot owner’s perspective, the process can discourage or prevent later challenges. It is difficult to accomplish this if the application does not adequately describe the location, materials, style, design, et cetera.
HOAs have reoccurring problems with owners getting approval from the committee on an application, and then after the change is made the neighbor voices a complaint about the result and the lack of notice. The Design Review Application Form also provides space for adjoining neighbors to sign to acknowledge receipt. Often these forms specify that the adjoining owner only signs to acknowledge receipt of the document. The governing instruments usually do not state whether such adjoiner signatures are required as part of the application or what the legal effect is of signing the document and then not opposing the application.
Design Review Application forms typically include “Owner’s Acknowledgements” for signature by the applicant. For example, a form used by many Virginia HOA says,
I/we understand and agree 1. That such approval by the Committee shall in no way be construed as to pass judgment on the correctness of the location, structural design, suitability of water flow or drainage, location of utilities, or other qualities of the proposed change being reviewed.
What does this mean? The application form is required because management deems architectural approval of location, design, and other qualities to be carefully considered before the lot owner may implement them. “Passing judgment on correctness” seems to be whole point. Addition of this item seems odd. I understand that the HOA does not want an owner to come back later and complain that it approved a design that resulted in structural failure or wrongful water diversion. From the face of the document it may be unclear whether the design choices were requested by the owner or dictated by the HOA. To the extent that HOAs use the architectural process to impose design requirements on lot owners, the HOA does not want to be held responsible for liabilities to that lot owner or a neighbor in the event that there is resulting damage or impairment of use or enjoyment. The broad scope of Acknowledgement #1, interpreted generously in favor of the HOA, could mean that the owner applicant could later be asked to change or move the approved improvement. I would disagree with this interpretation because it would render the process meaningless. Owners can address the ambiguity by being specific in their design proposal regarding these issues. They can also provide details in a letter as to why the location, design and other details are chosen (as opposed to other designs or locations) to made it more difficult to challenge. An owner could try not initialing this item or using handwriting to change it. Again, if it is not in the declaration or reflective of common sense then the owner is not legally obligated to acknowledge it.
Another reason to make sure that the design application form and supporting materials are complete and accurate is because if the lot owner doesn’t like the decision of the committee, she may have to appeal to the board or ask the circuit court for judicial review. it is more difficult to achieve a desirable outcome on appeal or review if the application is haphazardly prepared.
Unfortunately, the HOA architectural design review process has gotten out of hand over the years – often it fails to prevent or resolve neighbor disputes, does not succeed in achieving harmonious or attractive effects for the whole neighborhood, or give lot owners a sense that they can rely upon the decisions made by the committee. Many owners discover that they need a professional or experienced person to help them prepare the materials or guide them through the process, or to review what a neighbor is doing with a project that poses a nuisance. If the HOA wrongfully denies an unobjectionable submission or approves an adversarial neighbor’s faulty application, legal counsel may be necessary to bring a timely challenge before the court or board. The assistance of legal counsel may be necessary to avoid waiver or abandonment of rights on procedural or substantive grounds.