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Are Your HOA’s Architectural Control Restrictions Specific Enough?

One of the many benefits of buying property in a homeowners association is that the homes are often more valuable than homes located in non-deed restricted communities.  Architectural control restrictions in restrictive covenants often play a significant role in increasing and maintaining property values in a homeowners association.  Many HOA bylaws contain architectural control restrictions that regulate the appearance of a home or condo unit.  In most cases, a developer will have control over the initial architectural control committee for the HOA and approve the initial construction and landscaping plans.  However, after the developer exits the community, control over the architectural approval process is typically transferred to an owner controlled architectural control committee or the board of directors. Common examples of items that are subject to architectural control restrictions after developer turnover in a homeowners association are making modifications to the exterior of a house, painting a house, installing solar panels, building an addition on a home, constructing a deck, building a patio, constructing other structures such as sheds, gazebos, or in-law suites, installing a pool, modifying landscaping, installing a fence, or constructing a dog run.

While architectural control restrictions are necessary to maintain the aesthetics of a community, enforcement of ACC guidelines are frequently contentious battles as many owners fail to read the restrictive covenants before starting construction.  Similarly, in other cases, disputes arise between the HOA and owners when the restrictive covenants are ambiguous or unclear.   As will be demonstrated by the below cases, homeowners associations with ambiguous or unclear ACC guidelines should amend their restrictive covenants to ensure that the HOA may maintain the aesthetics of the community to preserve property values.

 

What Do The Architectural Control Restrictions in HOA Bylaws Restrict?

In Oliver Wendell Homes Inc v Hall, unpublished opinion of the Court of Appeals, issued September 16, 2003 (Docket No. 240487), 2003 WL 22138465, the Michigan Court of Appeals decided a dispute involving the scope of the architectural control restrictions contained in restrictive covenants.  In that case, a dispute arose over whether a deed restriction relating to the construction of a “structure”, which required the submission of certain plans, also prevented a property owner from planting new trees.  In differentiating a “structure” from a “tree”, the Michigan Court of Appeals held as follows:

Here, even construing “the covenants as a whole, giving effect to their underlying purpose” as plaintiff requests, the evergreen trees defendants planted were not prohibited by the restrictive covenants and, thus, neither approval nor consent were required before the trees were planted. The evergreen trees simply do not constitute a “Structure” within the contemplation of the governing document. Considering the words “fence,” “wall,” and “hedge” as they are ordinarily and generally understood, “trees” are none of them. That “trees” are distinguishable from a “Structure” is apparent from the document itself in that it references “trees” several times throughout the document. Consequently, reading the document as a whole, it is clear that the parties did not intend that the planting of trees be considered a “Structure” that is “erected, installed, or placed” for which a topographical survey, construction and architectural plans, specifications, a landscaping plan, and a construction schedule were required. Id. at *2.

While the Oliver Wendell Homes Inc case is unpublished, and not binding precedent, it does demonstrate the importance of specifically defining the types of items that are subject to ACC guidelines in the restrictive covenants.

 

Can an HOA Stop Construction of ACC Approved Design Plans?

In Heather Lake Homeowners Ass’n v Hein, unpublished opinion of the Court of Appeals, issued November 18, 2003 (Docket No. 241860), 2003 WL 22717885, the Michigan Court of Appeals considered whether a homeowners association could stop construction of a stonework sign that was approved by the architectural control committee.  Specifically, the Court of Appeals held as follows:

In this case, it is not disputed that defendants’ construction plans, including defendants’ proposed stonework, was approved by plaintiff. Nonetheless, the construction plans did not disclose that the stonework would be arranged to read, “JESUS IS KING.” Thus, at issue here is whether the deed restrictions required defendants to disclose that their stonework would be arranged to display the message, “JESUS IS KING,” such that plaintiff’s approval was required.

Here, paragraph 34 of the deed restrictions only requires that construction plans show the nature, kind, shape, height and materials of the structure. There is no requirement that the plans show the exact arrangement of the building materials for the structure. Furthermore, there is no restriction on signage. Under these circumstances, paragraph 34 is, at best, ambiguous as to whether disclosure of a particular brick arrangement is necessary. Given this ambiguity, any doubts must be resolved in favor of permitting defendants the free use of their property, so as to allow them to arrange the bricks in the manner they desire. Because defendants’ submitted plans indicated that their structure would have stone facing and plaintiff approved these plans, there was no clear violation of paragraph 34. Id. at *1–2.

While Heather Lake Homeowners Ass’n case is also an unpublished, and not binding precedent, it does demonstrate the importance of carefully reviewing construction plans before the ACC approves the plans.  In this author’s opinion, the ACC may have been justified in inquiring further during the architectural review process as the “JESUS IS KING” sign may have been related to the “nature, kind, or shape” of the structure.  However, the fact that the homeowners association approved the construction, without further inquiry, and that the HOA bylaws were not a model of clarity, led the Court to find that the construction of the sign did not violate the HOA bylaws.

 

Conclusion

The Oliver Wendell Homes Inc and Heather Lake Homeowners Ass’n cases demonstrate that the authority of a homeowners association or architectural control committee will be limited by the language contained in the restrictive covenants.  Accordingly, it is important for HOA bylaws to be as specific as possible when identifying the architectural control requirements that apply to the community.  If the architectural control restrictions on not clearly set forth in the restrictive covenants, the homeowners association may want to consider amending their HOA bylaws to contain more specific requirements that reflect the desires of the community.  Finally, homeowners associations and architectural control committees should make sure that they have a clear procedure when considering plans.  Best practices that homeowners associations can adopt to make the architectural control process run smoothly are as follows:

    1. Adopt HOA Rules That Govern The Process for Architectural Control Approvals.  In many cases, disputes arise because owners do not understand what types of plans need to be submitted, how specific the design plans must be, and how often it takes for them to be reviewed.  Often times, the restrictive covenants do not clearly outline the process, and many homeowners associations can adopt rules to implement the restrictive covenants.
    2. Follow The Restrictive Covenants.  Owners must be careful to review the restrictive covenants to avoid having to remove structures that were built without approval from the homeowners association.  Similarly, as evidenced by the above cases, homeowners associations must understand the scope of their authority when it comes to HOA approvals.
    3. Understand ACC Approval Timelines.  In some cases, the HOA bylaws will indicate that the architectural control committee has a certain timeframe to approve or deny plans, often a 30-day timeframe, and if no response is provided, the design plans are deemed approved. Accordingly, owners and architectural control committee members should be aware of any timelines contained in the restrictive covenants regarding the approval process.
    4. Rely On The Advice of Professionals.  In Michigan, MCL 450.2541 permits a director or office to rely on the advice of professionals, such as architects, attorneys, contractors or engineers, when making decisions in order to protect themselves from personal liability.  In many cases, design plans will require a determination about whether they are safe, meet local building requirements, or will otherwise impact the community.
    5. Put ACC Approvals in Writing.  Many HOA bylaws will require written approval from the board of directors or architectural control committee before proceeding.  Generally speaking, it is a good idea to enter into a formal written modification agreement, that clearly outlines the scope of the approval, which can be recorded in the register of deeds and/or kept as part of the HOA’s books and records to avoid future disputes about what was approved.

The above best practices will help many homeowners associations avoid litigation and protracted battles with owners.  This is important as architectural control restrictions are some of the most commonly litigated restrictive covenants. Accordingly, if your HOA is engaged in a dispute about the architectural control process, it is always a good to consult with a qualified HOA attorney before or while you are going through the process.  Similarly, if the HOA bylaws are unclear or ambiguous, it is wise to amend the restrictive covenants to clarify the architectural control approval process or adopt HOA rules to implement the existing requirements in the deed restrictions.

 

Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association law and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Michigan Super Lawyer’s Rising Star in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 450-0339 or kevin@hirzellaw.com.

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kevin@hirzellaw.com

Kevin Hirzel is the Managing Member of Hirzel Law, PLC. Hirzel Law has offices in Farmington, Grand Rapids, and Traverse City, Michigan with a fourth office location in Chicago, Illinois. Mr. Hirzel focuses his practice on condominium law, homeowners association law, and real estate law. He is a fellow in the College of Community Association Lawyers (“CCAL”), a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel formerly served on the CCAL National Board of Governors and is a former member of the Community Associations Institute’s (“CAI”) Board of Trustees, an international organization with over 40,000 members worldwide that is dedicated to improving community associations. Mr. Hirzel has been recognized as a Leading Lawyer in Michigan by Leading Lawyers, a distinction earned by fewer than 5% of all lawyers licensed in Michigan. He has been named a Michigan “Rising Star” in real estate law by Super Lawyers Magazine, a designation is given to no more than 2.5% of the attorneys in Michigan each year. Mr. Hirzel was also named as a “Go-To-Lawyer” in condominium and real estate law by Michigan Lawyer’s Weekly. Hirzel Law was also voted the best law firm in Metro Detroit in the Detroit Free Press Best of the Best awards. He is the Co-Chairman of the State Bar of Michigan’s Real Property Law Section Committee for Condominiums, PUDs & Cooperatives. Mr. Hirzel has authored numerous articles on community association law for publications such as the Michigan Community Association News, Michigan Real Property Review, Macomb County Bar Briefs and the Washington Post. He is also the author of “Hirzel’s Handbook: How to operate a Michigan Condo or HOA”, which is available for purchase on amazon.com. Mr. Hirzel has been interviewed on community association legal issues by various media outlets throughout the country, such as CBS, CNBC, Common Ground Magazine, Community Association Management Insider, the Dan Abrams Show on SiriusXM Radio, the Detroit News, Dr. Drew Midday Live on KABC Radio, Fox Business News, Fox News, HOALeader.com, the Law & Crime Network, Michigan Lawyer’s Weekly, NPR, WWJ News Radio and WXYZ. Mr. Hirzel is a dynamic speaker and frequently lectures on community association law throughout Michigan, as well as nationally at the CAI National Law Seminar, and is a two-time winner of the best manuscript award at the CAI National Law Seminar.

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