Q: I’m the president of a single-family residential subdivision with about 100 homes. The homeowners assumed control over the homeowners’ association from the developer about a year ago, and our HOA’s board of directors is revising and updating the community guidelines and rules. A new builder has purchased several lots, and that has focused our attention on the Architectural Review Committee (ARC) guidelines as the top priority. Would you comment on the following questions?
1. What’s a good source to use as a reference to assist with revising and updating ARC guidelines?
2. Prior to the board approving the revised guidelines, is a legal review required or recommended?
3. Once approved by the board, do the old ARC guidelines remain in force for existing homes? In other words, does the HOA need to maintain two sets of records, one for the old guidelines and one for the new guidelines?
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4. Knowing that the previous developer was lax with applying and enforcing ARC guidelines, what best practices do you recommend for applying enforcement measures?
5. If a lot owner refuses to comply after receiving multiple written violation notices, what additional steps do you recommend to assist with resolution?
A: First, unless you have an architect on your board with experience in residential design, I suggest that you hire one to assist you in revising the ARC guidelines.
Approved materials and design standards differ between neighborhoods and can change over time, and hiring an architect who has specific experience working with HOA boards and architectural committees will be money well spent. Qualified architectural consultants can be found by contacting the American Institute of Architects, www.aiacharlotte.org.
Second, you won’t need to keep two sets of records, but existing homes that were approved by the ARC under prior ARC guidelines are “grandfathered.” In other words, owners cannot be forced to change the exterior of their homes to meet the newly revised guidelines. However, any future alterations or additions to their homes would be governed by the new guidelines.
If you have an experienced architect on board, it may not be necessary to have your attorney review the new guidelines, but by all means do so if you have concerns or questions about the legal aspects. You need to ensure that the guidelines don’t conflict with, or impose more restrictive rules than, the community’s Declaration of Covenants, Conditions and Restrictions.
If you have owners who refuse to abide by the ARC guidelines (or the Declaration, bylaws, or other rules and regulations), check your Declaration to see if it has a specific procedure outlined for levying fines or suspending an owner’s HOA-provided services or community privileges.
If not, the N.C. Planned Community Act has such a procedure. The statute is N.C.G.S. § 47F-3-107.1, and it requires written notice and a hearing before the HOA can levy fines or suspend an owner’s community services or privileges. Your HOA management company or attorney can assist you if you’re unsure of the proper procedures.
Dealing with “legacy” violations or unapproved construction due to lax enforcement by the developer or previous boards is a difficult issue. I covered this topic in a previous column, which can be found at carolinacommonelements.com, January 2014 archives.
You can also read another article on architectural control written by my colleague, architect Richard Alsop, found at the same site, February 2014 archives.
Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to firstname.lastname@example.org. Not every question receives a reply. Find his blog at www.CarolinaCommonElements.com.
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