Subject to the governing documents and applicable law, members have the right to improve their properties. (Civ. Code § 4760.) Associations can, however, impose reasonable guidelines.
"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.)
Membership Review. 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. They can be incorporated into the Rules and Regulations or be 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.
Content of Guidelines. An association's architectural standards should include the following:
1. 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.
2. 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.
3. 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.
Approval-Disapproval Procedure. Associations must adopt written procedures for reviewing architectural applications, which must be included in the association's governing documents, i.e., the rules and regulations or architectural guidelines. (Civ. Code § 4765(a)(1).) The procedures should include information about committee meetings and records of written decisions, whether in minutes or otherwise.
1. Deadlines for Decision. In reviewing and approving or disapproving a proposed change, the association must provide a fair, reasonable, and expeditious procedure for making its decision. The procedure must be included in the association’s governing documents and must provide for prompt deadlines. The procedure shall state the maximum time for response to an application or a request for reconsideration by the board. Many sets of CC&Rs provide for automatic approval of the application if a decision is not made within the alloted period of time. Even so, missing a deadline is not always fatal. See Fox v. Corniche Sure Mer HOA.
2. Disapproval Procedure. Architectural decisions must be in writing. If an owner's application is disapproved, the board or architectural committee must include an explanation for the disapproval. (Civ. Code § 4765(a)(4).) If an application is disapproved, notice to the owner must include a description of the procedure for appealing the decision to the board of directors.
3. Appeal - Reconsideration. If an architectural submittal is disapproved by the architectural committee, the applicant is entitled to reconsideration by the board at an open meeting. Reconsideration is not required if the decision is made by the board or a body that has the same membership as the board, at a meeting that satisfies the requirements of Article 2 (commencing with Section 4900) of Chapter 6. Reconsideration by the board does not constitute dispute resolution within the meaning of Section 5905. (Civ. Code § 4765(a)(5).) Boards should establish a reasonable time limit in their written procedures for appealing an architectural decision. If an owner fails to file an appeal within that time period, he/she loses the right to appeal. The appeals period should run from the time the written notice of disapproval was transmitted to the owner.
Enforceable Operating Rules. Architectural Guidelines are enforceable operating rules. (Civ. Code § 4355.) Unrecorded architectural guidelines and rules are enforceable. (Rancho Santa Fe Assn v. Dolan-King (2004) 115 Cal.App.4th 28; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965; Clear Lake Riviera Community Assn v. Cramer (2010) 182 Cal.App.4th 459.)
Board Has Final Decision. Depending on how an architectural committee (ARC) is structured in an association's governing documents, it either (i) makes recommendations to the board or (ii) has direct authority to approve or disapprove applications. In either case, the board has the final say in architectural matters. In the first instance, the ARC makes recommendations to the board, which directors can accept or reject. The board makes the final decision. If the governing documents give the architectural committee independent decision-making authority, the board still retains control via four avenues.
1. Reconsideration. The first is when the ARC disapproves an application, the applicant can appeal to the board for a reversal of the committee's decision. By statute, the board is given the authority to reconsider and reverse ARC disapprovals.
2. Override ARC Decision. Where a committee's decision is contrary to the CC&Rs (such as approving a structure in the setbacks), the courts have made it clear that CC&Rs control. Thus, boards can override an ARC approval so as to comply with the association's governing documents.
3. Replace Committee Members. Nearly all documents provide that ARC members are appointed by the board. If the ARC refuses to reverse a decision, the board can remove committee members and replace them with members in line with the board's wishes. (If committee members are elected by the membership, the board cannot remove them and will need court intervention.)
4. Seek Court Order. If the ARC cannot be removed by the board, it has the option of going into court for an order reversing the ARC's decision. If, however, the disagreement between the board and the ARC is one of aesthetics rather than a violation of the CC&Rs, the court will likely side with the ARC.
Developer Control. Department of Real Estate Regulations permits the developer to control the architectural review and approval process for a stated period of time and that time is quite lengthy in the case of a master-planned community. The DRE recognizes the value of giving the developer the final say on architectural matters during the initial period of construction, marketing, and sale.
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