Warmer temps are finally here and after hours of scrolling through garden setups and DIY videos on TikTok, homeowners may be feeling inspired to add on or remodel the exterior of their homes and update their landscaping. But how can a property owners association (POA) ensure that owners do not move forward with a remodel or addition that detracts from the aesthetics of their community? To answer this question, POAs, their board of directors and community managers should turn to the applicable restrictive covenants and architectural control guidelines.
What are Architectural Control Guidelines?
Architectural control guidelines are adopted by the POA’s board of directors or its architectural control authority to provide owners with information including, but not limited to, the approved colors of exterior paint, fence requirements, accessory structure requirements and more. The guidelines serve as an extension of the POA’s governing documents. The guidelines should also address the processes associated with obtaining project approval, which should be easy to understand for both the POA and its members.
Should You Have an Architectural Control Committee?
A POA that is empowered to enforce architectural restrictions will typically need to have an architectural control committee (ACC) [1] in place. The ACC is the body charged with processing applications for improvements and determining whether such applications comply with the applicable restrictions. Previously, it was not uncommon for the POA’s board of directors to serve as the ACC.
Now, Sec. 209.00506 of the Texas Property Code requires a solicitation for candidates and places restrictions on who can serve on the ACC for communities that have more than 40 lots and are not under developer control, if the solicitation for candidates receives enough volunteers to fill the committee. In such communities, a person may not serve on the ACC if they are one of the following:
- A current board member;
- A current board member’s spouse; or
- A person residing in a current board member’s household.
Should the solicitation for candidates not receive enough volunteers to fill the committee positions, the board may appoint anyone to the committee.
The Approval Process and Violations
Once an application reaches the ACC committee, the committee should take the steps necessary to respond to the application within any applicable deadlines.
Many deed restrictions contain an automatic approval provision whereby any application which is not approved or denied within 30 days of receipt is deemed approved. Once the application is deemed approved it becomes extremely difficult, if not impossible, to require the owner to deviate from the plans that were submitted and deemed approved, even if the plans do not comply with the applicable restrictions.
During the review process, the ACC should analyze an application for compliance with the POA’s deed restrictions and ACC guidelines. If there are no compliance issues, the application should typically be approved. If there are compliance issues or the application is missing information, a detailed written denial should be sent.
On rare occasions, an application that would normally be denied may require a variance from the POA. A variance should only be granted if the restrictions give the POA specific authority to do so.
After approving or denying an application, the POA should monitor the property for which the application was submitted to ensure no unapproved or modified construction is taking place. In several instances, we have seen POAs wait to take action against unapproved construction until the construction is complete or substantially complete. In those circumstances, judges and juries are less likely to require an owner to undo or remove the construction due to equitable concerns.
Compliance actions should be taken as soon as possible after discovery, before a significant amount of time, labor, money and materials are expended by the owner. In extreme cases, it may be necessary to involve the POA’s legal counsel for purposes of sending a cease-and-desist letter and/or seeking a temporary restraining order.
In the event of a denial, an owner within a single-family POA is allowed by statute to appeal the ACC’s denial to the board of directors. Notice of the right to appeal should be included in the denial letter. If the owner makes a timely request for a hearing, the board must hold the hearing within thirty (30) days of receipt of the owner’s request.
Responding to Homeowners with Delinquent Fines or Assessments
An ACC may run into a situation where the applying owner is delinquent in the payment of fines and/or assessments. Currently, there is no precedent in case law or statute instructing POAs on whether to process the application. In the event an application is received from an owner with delinquent fines or assessments, the POA should look to its governing documents for guidance. If there is a provision in the POA’s governing documents that allows the ACC to deny the application based on delinquent fines or assessments, then the POA may do so. If there is no such provision in the governing documents, then the ACC should proceed with reviewing the application.
The architectural review process is an important function of any POA. It ensures owners are able to make modifications and improvements to their property while abiding by the restrictions of the POA and maintaining the intended character of the neighborhood. By maintaining a smooth architectural review process, a POA can ensure compliance is maintained and property values continue to increase for years to come.
[1] A POA’s governing documents determine the name of the POA’s architectural review authority. By way of example, some governing documents refer to an ACC as the ARC (architectural review committee).
