January 2011 – One owner wants to install a cherry-red fence, with one neighbor OK with it, but the other outraged at the possibility of such an eyesore. What’s the Board to do?
That’s what our reader wants to know, asking: “The condo I live in is a side-by-side twinplex in Florida. The association states in its condo documents that a homeowner has a five-foot limited common area that extends out from the painted surface of the condo. Some of the homeowners have used this space to add lanais and Florida rooms onto their condo. To do this, you must get permission from the architectural committee and the approval of your roofmate and the person living on the other side of you.
“My question is: If you allowed one owner to make an approved modification, can you deny another homeowner permission to do the exact same thing? Can your neighbors deny you permission to build a lanai or Florida room that conforms to the condo documents?”
Our reader asks a good question: When can your HOA require owners to get neighbor approval for alterations, and what should your association do about inconsistent results? Here our experts answer those questions.
Get Used to Owner Approval
Generally, provisions in HOA governing documents requiring some form of neighbors’ approval of modifications are enforceable.
“I’ve seen where an association’s governing documents call for either approval or provide veto authority to owners within a certain radius of the proposed work,” says Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. “The documents said that if the board authorizes or requires certain work to be done, owners of units within a certain radius of the exterior of a building in which the work will be done can vote not to have the work proceed, and that doesn’t require cause. I’m unaware of any authority in Minnesota that says that’s not enforceable or permissible.”
Some Florida HOAs also have such provisions. “It’s a board-by-board or architectural review committee decision,” says Dennis J. Eisinger, a partner at Eisinger, Brown, Lewis & Frankel PA in Hollywood, Fla., who represents more than 500 condo and HOA associations. “Every once in a while, you’ll see it in the homeowners’ association documents, but never in a condo setting.”
Nathaniel Abbate Jr., a partner at Makower Abbate & Associates PLLC in Farmington Hills, Mich., who represents associations, says he doesn’t recall seeing governing documents with such provisions, but he’s seen them play out in practice. “As a practical matter, often if there have been alterations or modifications permitted, it’s been conditioned upon the architectural review committee or the board having some form of comment from affected neighbors saying they don’t oppose the alterations,” he says. “An example is an extension of a deck. Is it affecting the views of the owner’s neighbors or cutting back on the light that might reach one of the units? Associations won’t have anything specifically in their documents, but they may make it as part of their rules and regulations, saying something like, ‘If owners come to the board for a request for a modification, the board will expect owners to inform the board whether all the neighbors agree with it.'”
Abbate has seen boards deny requests for alterations when just one neighbor objected. “With the deck extension, an owner on the second floor wanted to extend her deck,” he says. “One owner said it would cut back on the light that would reach his windows, and he said he bought his place with this expectation that he would have that light. So the board resisted her alteration, and she filed suit. The board prevailed in court, with the judge saying that decision was within the board’s discretion. She went through two lawyers, maybe three, and we kept convincing people we were right. She was bound and determined she was going to do that deck extension. She ended up wasting a lot of money.”
When Approval Becomes a Problem
Are such rules a good idea? Opinions are mixed. Eisinger says they can impair a board’s ability to enforce its aesthetic standards. “If one neighbor says it’s OK, then every other neighbor’s going to argue he’s entitled to make the same alteration,” he says. “You’ve lost your ability to prohibit the alteration. It could affect enforcement in the future, so I believe if it’s appropriate at all, it should be on a case-by-case basis through the architectural review board, and owner approval should be used sparingly. There should be uniformity to the community, but for the most part, I don’t think it’s a great idea.”
The rule can be smart if a requested alteration will change the character of a unit or community, according to Duane McPherson, the San Rafael, Calif.-based division president at RealManage, an association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas. But he doesn’t think neighbors’ approval should be absolute.
“I think it’s entirely appropriate if it’s a significant modification,” says McPherson. “The question is: Does it set a precedent? Absolutely. So when a board is considering doing something like getting opinions from neighbors and setting such precedents, make sure you talk to your lawyer to understand the appropriate state law and ensure you’re covering your bases. Sometimes associations require neighbors’ approvals in the first case. In the next case they don’t. You might as well establish a policy that covers every situation. And if you’re going to get input from other owners, those opinions should be a factor in the board’s decision. The board’s decision shouldn’t be contingent on neighbors’ approval.”
The biggest risk may be the mish-mosh of potential outcomes. “Allowing neighbor approval can create a disparity in outcomes,” says Drewes. “but I don’t think that’s necessarily going to create a concern for the association as long as the association maintains a consistent standard for when it authorizes or denies a request to make an alteration.
“However, the homeowner who wants to do the work may want to examine past decisions to see if there’s an improper motive for a neighbor’s denial,” Drewes adds. “That decision might still be reviewable if it’s challenged if the homeowner in question has previously approved a similar alteration to another unit and now declines the request currently on the table. I haven’t seen any authority for that, but I’d expect a court is going to at least review those kinds of decisions for whether they’re being made arbitrarily or with an improper motive.”
Matt Humphrey is president of the Alameda, California-based HOAleader.com, from which this article was adapted.