Architectural Guidelines Defined
Members have the right to improve their properties subject to the governing documents and applicable law. (Civ. Code § 4760.) Associations can, however, impose reasonable architectural review procedures. Architectural Guidelines also called "Architectural Standards," "Design Rules," etc., establish an association's policies and procedures for alterations, modifications, and improvements to an owner's property, common areas, and exclusive use common areas. Guidelines often include subjective aesthetic considerations. Architectural standards provide details to matters that may or may not be covered in the CC&Rs. For example, the CC&Rs may not cover paint colors or acoustical standards, but both can be included in the architectural standards. Maintaining the architectural integrity of the development has been recognized by the courts as an important function of an association.
Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. (Dolan-King v. Rancho Santa Fe.)
Another important function of the Association is to preserve the aesthetic quality and property values within the community. (Cohen v. Kite Hill.)
Because associations are responsible for the common areas and because CC&Rs prohibit alterations to the common areas without prior approval of the board of directors or an architectural committee, boards should adopt written architectural guidelines. These guidelines can be incorporated into the Rules and Regulations or stand alone architectural standards. Architectural standards are developed and approved by the board of directors. Adopting or amending architectural standards is considered an operating rule change that requires 28 days' notice to the membership before it can be adopted. See procedures for adopting rules.
Aesthetic Standards. One of the functions of an architectural committee is to make subjective decisions about aesthetics. This is a recognized function of the committee and their decisions on such issues control even where an owner may strongly disagree.
"attractiveness" and "artistry" are, like beauty, well within the eye of the beholder. fn. 11 Such qualities have never been measurable or quantifiable. Therefore, we conclude as a matter of law the Association and its subordinate entities maintain the power under their enabling covenant to apply both subjective and objective criteria when evaluating the merit of proposed improvements to covenant property. (Clark v. Rancho Santa Fe Assn. (1989) 216 Cal.App.3d 606, 619.)
…where the record indicates the Art Jury and Board acted within the authority granted to it by the Covenant, pursuant to a reasonable investigation, in the best interests of the community and not in an arbitrary manner, we will respect and uphold their decisions. …The Board’s action upholding the Art Jury's decision was also well within its discretion and authority. The Board is empowered to rely upon the Art Jury's recommendation. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 979-980.)
...an evaluation of a proposed solar energy system--just as any other proposed improvement--would involve the consideration of aesthetics. (Tesoro Del Valle Master HOA v. Griffen (2011) 200 Cal.App.4th 619, 633.)
Content of Architectural Guidelines
An association's architectural standards should include the following:
- Standards. Condominiums and townhomes should establish acoustical standards for items such as hard surfaced flooring, higher standards for plumbing fixtures (brass angle stops, braided supply lines, etc.), submittal of plans for major remodels, etc. Planned developments should have written standards for paint colors, roofing materials, fencing, landscaping, etc.
- Remodeling Agreement. Remodeling agreements are important for condominiums and planned developments alike. The agreement is signed by the owner and describes the scope of work, limits the owner to work approved by the board (or Architectural Review Committee), makes the owner responsible for damage to common areas, requires licensed and insured contractors, requires building permits, sets a deadline for completion of construction, contains and indemnity provision, etc.
- Contractor Rules. Contractor rules (and fines against the owner for rules violations by his contractors) should include items such as restricting work on holidays (define which holidays), defining hours when work may occur, etc.
Homeowner Maintenance Covenants
Associations should record a maintenance covenant against individual properties whenever an owner is granted exclusive use of a common area, makes external alterations to a condominium, or installs an electric vehicle charging station. The covenant contains the owner's maintenance obligations, holds the association harmless, addresses damage issues, and indemnifies the association. It is then signed by the owner and recorded by the association. Doing so creates a permanent record and informs all future property owners of their obligations.
Condo vs. Planned Development ARC Priorities
Condominiums. Condo architectural committees care about alterations inside your unit because everything surrounding your cube of air is owned in common. That means you cannot change the structure without getting the association's permission. Alterations to plumbing and electrical lines are also restricted because they can dramatically affect neighboring units. Thus, approval by the association is required.
Planned Developments. Planned developments are not interested in what you do inside your house. Instead, they care a great deal about exterior appearances. As a result, they regulate the color of paint you use, your fences, doors, windows, garage doors, landscaping, tree houses, and anything else that can be seen from the street or by your neighbors.
Hybrids. Townhouse developments can be a bit confusing. A townhouse is a form of construction, not a form of ownership. Townhomes can be legally structured as condominiums or as planned developments. If structured as condominiums, homeowners might own air space or the entire structure, depending on how it is defined. Similarly, maintenance might be defined narrowly or expansively. It is not uncommon for a homeowner to own the structure, but the association is in charge of painting and roof repairs.
Whether a townhouse is a condominium or a single-family home, the association controls the exterior structure. In all cases, the association can specify the type, color, and quality of windows, garage doors, and front doors used by homeowners when they upgrade.
Architectural Annual Disclosure
Associations must annually notify members of any requirements for association approval of physical changes to their property. The notice must describe the changes that require association approval and include a copy of the procedure used to review and approve or disapprove a proposed change. (Civ. Code § 4765(c).)
Height Restrictions
In Clear Lake Riviera v. Cramer, the court ordered a homeowner who knowingly built a home in violation of the association’s height restrictions to fully comply with the association’s architectural guidelines, even though reducing the height of the owner’s house “will be expensive and inconvenient, and its cost may exceed the amount of economic harm inflicted…on the neighboring properties, at least as measured by the diminution in market value of those properties.”
The court ruled that the non-conforming house must be reconstructed to comply with the Association’s height restrictions, reasoning that:
1) The violation of the height restriction was not “innocent” because the offending homeowner was aware of the restriction.
2) The violation caused irreparable harm to neighbors because the new construction blocked their views of the lake. Additionally, the neighbors suffered a loss of privacy, since the new house looked onto these residences.
3) The $200,000 cost of correcting the violation was not “grossly disproportionate” to the hardship caused to the association because the height violation caused the value of one neighbor’s home to be diminished by over $75,000.
Paint Colors
QUESTION: Our HOA requires homeowners receive approval from an architectural committee before painting their homes. The committee does not have any standards for reviewing paint colors. Can they deny a color simply because they don't like it?
ANSWER: Yes they can reject a paint color simply because they don't like it. That is precisely why an architectural committee exists--to make aesthetic decisions about what is appropriate for the community and what is not.
Another important function of the Association is to preserve the aesthetic quality and property values within the community. (Cohen v. Kite Hill.)
Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. (Dolan-King v. Rancho Santa Fe.)
Written Standards. Not having written standards, however, is a problem. It leads to discord and potential litigation because members jump to the conclusion that they are somehow being discriminated against if their request is denied. If the committee were to adopt written standards, applicants would know what colors to choose from and would submit a conforming color, thereby avoiding rejection.
Disapproval Requirements. Per the Davis-Stirling Act, any decision by the architectural committee must be in writing. If a proposed change is disapproved, the committee's decision must include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision.
Changing Colors. If an architectural committee or board were to change the existing color scheme in the committee, another procedure needs to be followed. It's impossible to please everyone, especially when it comes to paint .color (or carpet, wallpaper, lobby furniture, etc'). Putting it to a vote of the members is the best way to.handle the situation.
- Benefits of Owner Vote. If the board leaves the membership out of the decision-making process, unhappy owners would have a clear target, he board, and may threaten to sue or launch a recall. If the membership makes the selection, there is no one to recall. It also makes a lawsuit less likely since unhappy owners would have to sue the association as a whole and then try to convince a judge that the majority's decision should be reversed. I don't see that happening.
- Voting Formalities. In this case, a membership vote does not require secret balloting, which is reserved for specific kinds of votes. It can be done electronically or by paper. If paper ballots are used, they can be signed or unsigned. Although not required, it's still a good idea to use an independent inspector of elections.
Recommendation: All associations should adopt clearly defined architectural standards. Once adopted, enforcement of those standards must be in good faith and not arbitrary or capricious.
Fire Retardant Roof Materials
As provided for in Civil Code § 4720, associations cannot put aesthetics over fire safety when it comes to roofs. Associations are prohibited from requiring owners to install or repair their roofs in a manner that violates Health & Safety Code § 13132.7.
Developments in very high fire severity zones must allow for at least one type of fire retardant roofing material that meets the requirements of the Health and Safety Code. Simply repairing a roof does not trigger the requirement for fire-retardant materials. However, replacement of more than 50% of a roof within a 1-year period requires the use of Class A or B materials for very high fire hazard zones and Class C for all other areas.
Recommendation: All associations should have their roofing requirements reviewed by an architect or roofing consultant to establish proper standards for their particular development. NOTE: Changes required by this statute are exempt from the 30-day member notice and comment period found in Civil Code § 4360.
Setbacks and Easements
Setbacks. Associations cannot require setbacks that conflict with the CC&Rs. (Ticor Title v. Rancho Santa Fe; the association required a 50-foot setback even though the CC&Rs established 20-foot setbacks). Structures built into the setbacks can be ordered removed by the courts. (Morgan v. Veach.)
Wood Deck & Hot Tub. An owner built a deck and hot tub in the association's easement. He did so with the permission of the architectural committee but in violation of a CC&R restriction that prohibited structures in the easements. The board of directors discovered the violation and ordered the owner to remove the deck. The owner refused, even when the association offered to pay for the removal. The association sued the owner. The court ordered the removal of the new deck and hot tub. The court concluded that the owner violated the express prohibition in the CC&Rs and the architectural committee did not have the authority to approve a violation of the CC&Rs. (Woodridge Escondido v. Nielsen.)
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