Tuesday, May 7, 2013

Better Late Than Never

One of the Board's (many) responsibilities is ensuring a uniform community appearance.  The curbside appeal of a community directly impacts it's home values.  To accomplish this task, the Board may establish an architectural review committee, which homeowners petition when desiring to make a change to their properties. 

For communities where building guidelines have not been monitored over a period of years, a new Board must ask, “How do we go about implementing controls?”

The first step is to inventory the number and type of compliance violations that exist.  Learning how long these violations have existed limits how the Board acts.  If several homeowners installed storage sheds four or five years ago, the Board will have a difficult time requiring shed removal:  A Georgia two-year statute of limitations exists, starting at the point the violation began, not when it was noticed. 

A homeowner in one community wanted to install a second driveway.  The court upheld his ability to do so, when he provided evidence that most of the other homes in the community already had such driveways - a widespread violation may preempt enforcement altogether (for this particular violation).

This leads to the second step:  Putting the community on notice.  A letter acknowledging that enforcement has not occurred, a start-date for the Board’s commitment to begin monitoring, and a copy of the approval request form should be provided to each homeowner.  This is also a great time to call for volunteers to staff the review committee.

The glacial pace of the judicial system makes it impractical to pursue violations existing more than 18 months.  For more recent violations, the Board should issue a letter to the homeowner stipulating a request be provided immediately for review, or have the offending items removed.   For those homeowners who refuse, the next step is to file notice in the county courthouse records of the violation, so that any future homeowner will be aware that the violation requires correction upon purchase of the home. 

A homeowner in one community installed a hot tub on his patio without approval.  He refused to remove it, and sold his home prior to notice of the violation being filed in the property records.  Because of this, the condition was grandfathered in with the new homeowner. 

For this situation, along with those in which the statute of limitations expired, the final recourse is to tie it with conditional approval of future architectural requests.  In the above example, the new owner wanted to install double-pane windows, and agreed to have the hot tub removed at the same time.

By maintaining detailed records of approvals and denials for each home, the current Board sets the standard for all future Boards to follow.  To avoid creating loopholes, be sure to consult with management and legal counsel when starting up architectural compliance – each Association is unique in its stipulations.

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