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Avoid Improper Architectural Review Procedures

This time of year, Associations tend to see an influx of owner requests for construction projects, such as additions, pools, sheds, and fences. In attempting to accommodate owners, it is easy to forget important steps in the process from the Association standpoint. The owner typically wants a quick turn around on any request, and some will push to get it. However, the Association needs to take the time to make sure all of the proper procedures are followed. It is not sufficient to pass the plans around by email to discuss them and then issue a quick approval. Failing to follow proper procedures can have consequences down the line.

Be very cognizant of what your documents require. Do you have an Architectural Review Board or Committee that reviews these requests? Or is it the Board? Do you have to respond within a specific amount of time? Your documents should provide a road map to process requests. If they do not, contact our office to discuss your options and develop a procedure that can be adopted.

Many documents contain provisions requiring the Board to respond to any request within a specific time period. This time period is important, because if a response is not issued within that time period, the provision may dictate that the request is automatically approved. This could be disastrous when the request does not fit aesthetically within the Association, is not the proper materials or color, or is something the Association does not allow. By failing to act in those instances, the Board opens itself to liability and scrutiny for not doing its job. It is also imperative to keep detailed and correct records of the submissions, the board or committee meeting minutes, votes for approval or denial, as well as the approval or denial notifications. If the Board votes by email, remember that the vote must be unanimous and must be notated in the minutes. An approval or denial must be issued in a timely manner detailing which set of plans or proposals were approved. This is especially important where there are versions or variations of plans submitted. If there is a problem, proper records can help the Association in enforcing a plan. For example, an owner sought approval for a pool and a fence. The plans called for a black iron fence and an in-ground pool. If the owner fails to install the fence, or instead puts in an above ground pool, if the Association has clear records of what was approved, when, and which plans.

Then when the owner deviates from that approved plan, the Association has grounds to demand that the owner make the changes. If there are no Board meeting minutes approving a specific set of plans, no record of the vote, or there is a Board member who gave the go ahead to the owner for the installation without a proper vote, the Association will have a harder time proving what was supposed to be installed in the first place and whether it was properly approved to begin with. It makes enforcement difficult, if not impossible in some cases. Not to mention, there are the issues of the failure of the Board to follow procedures, perform its duties and avoid liability. It is also important to know the extent of the power your Architectural Review Committee holds. Some Committees have decision authority, however, most do not. Most serve in an advisory capacity to the Board. The Committee should make the recommendation to the Board, and the Board vote to determine the approvals or denials, along with issuing the notice to the owner of the result. If your Committee does not have decision authority, make sure the Board is issuing those approvals and denials. Now is a good time to take a few minutes and review those sections in your documents to make sure that your Association is not inadvertently making mistakes in your process that can cause headaches later on when an issue arises.

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