Enforcing Conformity: Home Improvement Projects And Architectural Review Boards In HOAs
The first question to ask when deciding what improvements require HOA approval is, "what improvements does the declaration say require approval?"
You found the right home, and now you are ready to build a beautiful deck to relax on or add another room. Then, the HOA gets involved. They want to know how big the deck will be, what color you are going to paint it, and (most significantly) whether the plans comply with the community's architectural guidelines. At this point, you are ready to tell the board to take a hike. After all, it is your property, and you can do what you want, right? Well…maybe not.
Enforcement of covenants and restrictions is one of the many powers and duties with which homeowners' associations are imbued. And, as it turns out, architectural and aesthetic standards within a community are one of the more popular topics for restrictions. It makes sense in theory.
If we all agree not to paint our houses any outlandish colors or fashion any absurd landscaping sculptures in the front yard, we can maintain a dignified atmosphere and keep property values high throughout the subdivision. The tradeoff, though, is that you are surrendering the right to use your property however you see fit.
In practice, architectural restrictions involve a balance between individual rights and community well-being. The U.S. legal system generally views any land-use restrictions with suspicion. However, the law also recognizes that reasonable restrictions are sometimes justified if they benefit the community as a whole.
With that in mind, courts throughout the country have consistently upheld the right of HOAs to impose architectural restrictions as long as the restriction serves a legitimate purpose, is within the association's power under state law and/or the community's declaration, and does not violate any other law or public policy. See, e.g., Laguna Royale Owners Assn. v. Darger, 119 Cal.App.3d 670 (1981).
However, there are also plenty of reasons why an architectural restriction might not be enforceable. Before we dive in, it is essential to clarify that HOA restrictions and approval requirements for home improvements are distinct from local zoning ordinances and permitting rules.
While HOA restrictions are generally based on contract law principles, zoning boards and planning commissions derive their authority directly from state and local governments. Although the substantive rules are occasionally similar, there can be notable differences between the legal and procedural standards applied in the two venues.
HOAs Authority to Restrict Community Aesthetics
When you purchase a property in an HOA community, you are entering into a sort of implied contract with the HOA and the other members. As part of that agreement, you are accepting the HOA's declaration and agreeing to be bound by the covenants and restrictions included therein. See, e.g., Castle Point Homeowners Assn. v. Simmons, 333 Ga. App. 501, 505-506, 773 S.E.2d 806 (2015).
Quite often, those covenants and restrictions have something to say about the appearance of homes and lots in the community and what improvements homeowners can and cannot undertake.
Most states allow HOAs considerable discretion in adopting and enforcing restrictions as long as the restrictions are validly enacted under state law and the community's governing documents. See, Tex. Prop. Code § 202.003(a).
Many or even most subdivision declarations empower the association to protect the community's appearance in one way or another. Permissible restrictions could potentially address anything from exterior color, landscaping, and trash-can placement to above-ground pools and solar panels.
Depending on the specific jurisdiction, a declaration might broadly reserve to the HOA the right to grant or withhold approval of most modifications that would affect the appearance of a home or lot within the community. See, e.g., O.C.G.A. §44-3-231(a).
Commonly, declarations announce more generalized standards and empower the board to enact specific architectural regulations implementing those standards. If permitted by the declaration, an HOA board can also delegate the power to adopt and implement architectural guidelines to an architectural review board (sometimes called an "architectural committee" or something similar)—a committee appointed by the board usually consisting at least in part of fellow homeowners and board members.
Architectural guidelines or standards are written rules published by an HOA or its architectural review board regulating the exterior appearance of structures, new improvements, and often landscaping. Guidelines can complement and provide additional details beyond restrictions outlined in a declaration, but a problem arises when architectural guidelines exceed the powers granted to the HOA by the declaration.
Courts in some jurisdictions are reluctant to read broadly worded restrictions in a manner that allows an association power over areas not plainly within the scope of community covenants. Tarr v. Timberwood Park Owners Ass'n, 556 S.W.3d 274, 61 Tex. Sup. Ct. J. 1174 (2018).
For the most part, an HOA board or architectural committee will not be able to enforce regulations relating to issues not addressed in the declaration or that are inconsistent with the declaration's covenants and restrictions or state law. Fla. Stat. §720.3035(4) and (5); Ekstrom v. Marquesa at Monarch Beach Homeowners Association, 168 Cal.App.4th 1111 (Cal. Ct. App. 2008). Individual states vary in the amount of leeway allowed to architectural guidelines.
In communities with an architectural review committee, members typically have to submit proposed renovations or improvements for the committee's approval before starting work. The committee's job is to then ensure a proposed change is consistent with the community's restrictions and architectural guidelines. See O.C.G.A. §44-3-231(a); Tex. Prop. Code § 204.010(18). If a community does not have a committee, the responsibility for reviewing proposed changes usually rests with the board.
Home Improvement Projects Requiring HOA Approval
To be enforceable, architectural and aesthetic standards must have some grounding in the community's declaration or state law. So, the first question to ask when deciding what improvements require HOA approval is, "what improvements does the declaration say require approval?" From there, the next step is to review any architectural guidelines published by the association. Well-written regulations will identify the types of improvements requiring approval and set forth a process for seeking approval.
The areas in which an architectural committee is empowered to act—and the level of discretion a committee has in interpreting covenants and granting or denying approval requests—vary considerably from state to state and among individual communities.
Commonly, communities with aesthetic restrictions will have standards and guidelines relating to improvements affecting the exterior appearances of structures within the subdivision. For instance, a community might limit exterior paint to specific colors, or it might require paint to be consistent with the neighborhood's overall motif and leave it up to the committee to decide whether a proposed color meets that standard.
Condominiums tend to have strict requirements relating to any outward-facing modifications, and because substantial portions of a condominium are part of the common elements, even some interior improvements might require an architectural committee's approval.
Replacement windows are another common subject for architectural review. In older homes, especially, homeowners often want to replace original, inefficient windows with more modern energy-efficient replacements. If the HOA has the authority to regulate in this area, it will likely require new windows to match the community's prevailing style in terms of size and frame material, color, and shape.
Even older declarations with a generally hands-off approach often address fences, sheds, decks, and other land improvements. Along with color, fences, sheds, and decks typically must be constructed of approved materials and are often subject to size or height restrictions.
Depending on the community, any exterior improvements could require pre-approval of the community's architectural review board.
Individual communities vary tremendously in the extent to which they regulate landscaping. Older subdivisions, particularly in rural areas, may just require yards to be neatly maintained and leave the rest to homeowners. But a newer community in an affluent suburban area might have detailed guidelines covering gardens, permissible plant and tree types, grass length and type, landscaping materials, irrigation methods, and any number of other factors that could affect the appearance of yards in the community.
Many communities have different architectural standards, depending on the nature of the contemplated improvement. For example, homeowners could be allowed wider latitude for purely cosmetic modifications but very little for new construction. Or, yards might just have to be kept neat while at the same time improvements affecting structures are tightly regulated. Ultimately, the areas that can be addressed depends on the community's declaration and the laws of the state in which it is located.
Unenforceable HOA Improvement Restrictions
When deciding whether a specific restriction is valid and enforceable, courts interpret covenants along the same lines as ordinary contracts. Big Boulder Lake Condominium Association v. Cappuccio, 673 A.2d 340 (Pa. Superior Ct. 1996).
Typically, a restriction or covenant can be enforced as long as it is "reasonable" and promotes a substantial interest of the community. Saunders v. Thorn Woode Partnership, L.P. 265 Ga. 703, 462 S.E.2d 135 (1995). Across the country, courts have been fairly consistent in holding that promotion of community aesthetics and property values is a legitimate purpose and important function of associations. See, e.g., Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642.
Because preserving property values and "maintaining a consistent and harmonious neighborhood…that is architecturally and artistically pleasing" are substantial interests of a community, restrictions that serve those purposes will usually be upheld. Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 976). However, if a restriction conflicts with state or federal law, otherwise violates a state's public policy, or is enforced selectively or arbitrarily, there is a good chance it will be ruled unenforceable.
Limitations on Improvement Restrictions under State HOA Laws.
Numerous state laws prohibit HOAs from inhibiting homeowner conduct in certain areas. The basic idea is that—if the state legislature thinks an individual activity or right is too important to permit HOA interference—it will pass a law limiting community associations' power to act in that area.
A common approach is to allow HOAs to implement reasonable (but limited) regulations relating to the protected activity but forbid outright prohibitions. For example, many legislatures protect solar panels and other energy-efficient systems and devices due to their eco-friendliness.
In Texas, associations cannot prohibit solar panels unless public safety is at issue (though communities can regulate panel placement). Tex. Prop. Code §202.010. Texas also protects roofing shingles that are energy-efficient or can generate solar power, though limitations promoting uniformity of home appearance in the community can be acceptable. Tex. Prop. Code §202.011. Backup generators are likewise protected in the Lonestar State—as long as they meet applicable safety codes. Tex. Prop. Code § 202.019.
Similarly, California forbids HOA prohibitions on solar energy systems or electric vehicle charging stations, as long as the system is up-to-code. Cal. Civ. Code §§714, 4745-4746. "Reasonable restrictions" are acceptable, provided they do not affect the cost, efficiency, or performance of the system. Id. Backyard clotheslines and drying racks also conserve energy, and California protects those, as well. Cal. Civ. Code §4753.
Arizona stymies HOA prohibitions on solar energy devices and goes a step further, invalidating any covenant that would prevent installation or use of solar devices. A.R.S. §§33-439, 33-1816. Landscaping is another popular area for state-law protection against excessive HOA encroachment.
Florida disallows enforcement of restrictions that would stop homeowners from implementing "Florida-friendly landscaping" designed to conserve water resources. Fla. Stat. §720.3075(4)(b). Texas also limits HOAs' power to restrict landscaping designed for water conservation and additionally protects homeowners' right to collect rainwater, install irrigation systems, or use compost piles. California will not let HOAs prevent members from gardening, as long as the garden meets the state's definition of "personal agriculture." Cal. Civ. Code §4750.
HOA restrictions on signage are common and usually fully enforceable against homeowners. See, e.g., Big Boulder Lake Condominium Association v. Cappuccio, 673 A.2d 340 (Pa. Superior Ct. 1996). However, in deference to the right to political expression, many states choose to protect political signs from HOA interference.
A common system guarantees homeowners the right to display political signs, sometimes only around the time of an election, while allowing HOAs to limit the number, location, and size of political signs displayed. See, e.g., A.R.S. §33-1808C.
To promote patriotism, state legislatures commonly protect flagpoles and the right to display the American flag. Texas lets HOAs impose certain limitations on the size and manner of a display, but HOAs cannot preempt homeowners' right to install flagpoles and display the American or Texas flag. Tex. Prop. Code §202.012.
Florida's flag-protection law is similar, protecting the flags of the U.S. and State of Florida up to 4.5 x 6 feet in size, but letting HOAs regulate the time, place, and manner of display. As it turns out, state laws protecting the U.S. flag are somewhat redundant, as the Freedom to Display the American Flag Act, 4 U.S.C. §5, Pub. L. 109-243, expressly protects the national flag against HOA intrusion at the federal level.
Federal Limitations.
Although regulation of HOAs primarily occurs at the state level, several federal statutes also impact an association's ability to limit homeowner improvements and lot appearance.
TV antennas and satellite dishes are protected by OTARD (the Over-the-Air Reception Devices Rule, 47 C.F.R. §1.4000. OTARD promotes consumer access to television programming by invalidating prohibitions on installation, maintenance, and use of reception devices.
HOAs cannot unreasonably limit homeowners' use of wireless-cable antennas or local television broadcasts, and satellite dishes not exceeding one meter in diameter are also protected. Reasonable limitations are acceptable as long as HOA rules do not impede or increase the expense of installation, maintenance, or use of the devices.
The Fair Housing Act (FHA), 42 U.S.C. §3601, et. seq., prohibits housing discrimination based upon race, color, religion, sex, familial status, national origin, and disability. Like landlords, HOAs are covered by the statute, and so any restriction or covenant adopted for a discriminatory purpose is unlawful.
Thus, a restriction singling out Crucifixes or Stars of David for prohibition would be unenforceable as a blatant violation of the FHA. However, a covenant does not need to explicitly mention any protected class if a discriminatory intent is clear from the surrounding circumstances. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir.1995).
On the other hand, a restriction that has the incidental effect of limiting religious expression, but which is not designed to do so, is usually enforceable if enforced consistently. We have previously written in-depth about Religious Freedom in Homeowners Associations.
In the Texas Appeals Court case of Tien Tao Ass'n, Inc v Kingsbridge Park Cmty Ass'n, Inc., (953 SW2d 525, (Tex App, 1997)), the property-owner organization was religious in nature and held meetings on the lot it owned in an HOA community. The HOA argued that, among other things, landscaping renovations made by the property owner violated the community's architectural standards.
Although the landscaping at issue was indeed religious in nature, the court nonetheless ruled for the HOA, finding that the HOA rules that had been broken served a legitimate purpose and were not intended to impede the owner's religious practice.
Under the FHA's disability protections, housing providers (including HOAs) are required to make "reasonable accommodations" and "reasonable modifications" to allow disabled persons full access and enjoyment to housing. Thus, if an architectural rule prevents a disabled person from fully enjoying housing in the community, the HOA may need to issue a waiver for the disabled person and forego enforcing the rule in that limited instance.
The Departments of Justice and Housing & Urban Development define "reasonable accommodation" to mean a "change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces." See, Joint Statement of HUD and Dept. of Justice Reasonable Accommodations under the Fair Housing Act (2004).
A reasonable modification is a "structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises." See, Joint Statement of HUD and Dept. of Justice Reasonable Modifications under the Fair Housing Act (2008).
For example, if an HOA has an architectural guideline applying to doorway width, it will be unenforceable against a disabled person who needs a wider doorway for a wheelchair.
A request for reasonable accommodation or modification directly related to a resident's disability can only be denied "if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider's operations." Warren v. Delvista Towers Condo. Assoc., 49 F.Supp. 3d 1082 (2014).
Though less frequently impacting HOAs, the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 et seq., also prohibits disability-based discrimination. Rather than applying directly to housing, the ADA regulates employment, transportation, public accommodations, communications, and access to government programs and services.
To the extent an HOA provides facilities that are open to the public and qualify as "public accommodations," the HOA must ensure that its facilities comply with the ADA Accessibility Guidelines. These guidelines are published and regularly updated by the federal Access Board and set forth accessibility requirements and standards for new construction and alteration of facilities that are subject to the ADA. A restriction or covenant is unenforceable to the extent it limits access by disabled persons to HOA facilities that are subject to the ADA.
Selective Enforcement.
As a general rule, an HOA board must exercise its enforcement powers in a manner that is "procedurally fair and reasonable," and enforcement decisions must be made in "good faith … not arbitrary and capricious." Saunders v. Thorn Woode Partnership, L.P. 265 Ga. 703, 462 S.E.2d 135 (Ga., 1995).
Inconsistent or arbitrary enforcement of restrictions can preclude an HOA's future attempts to enforce the restriction. Liebler v. Point Loma Tennis Club, 40 Cal. App. 4th 1600, 1610-11 (4th Dist. 1995); Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003). If an HOA only enforces a restriction against some homeowners or on certain occasions—or if it previously permitted conduct that violates the restriction—a reviewing court can find that the association has effectively waived its enforcement rights. Cowling v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958).
Likewise, a restriction an HOA only enforces against one homeowner, or only a portion of homeowners will likely be found unenforceable. See, e.g., Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008). Homeowners targeted for arbitrary or selective enforcement of an architectural restriction or guideline can assert the inconsistent enforcement as a defense to an enforcement suit filed by the HOA. White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).
Let us say, for example, that a community's declaration only allows homes to be painted white. However, the HOA board or architectural committee has previously acquiesced or granted waivers allowing several homeowners to paint their houses purple. But, when a subsequent owner asks for approval to paint his or her home purple, the board rejects the application in reliance on the previously unenforced restriction.
In this scenario, the rejected homeowner can make a strong argument that the restriction is being selectively enforced and has been effectively waived due to the board's previous acquiescence. And, in all likelihood, a reviewing court would decline to enforce the selectively enforced restriction.
Submitting Plans for HOA Approval.
In communities with architectural restrictions and guidelines, the precise process for obtaining approval of an HOA board or architectural committee (if required) varies between associations and states. Usually, the application procedure is outlined in the community's declaration or written rules adopted by the board. See, e.g., Cal. Civ. Code §4765(a)(1).
Having a formal, written process in place that documents the rationale for decisions helps to protect boards from member claims of inconsistent or selective enforcement. In some communities, the process depends in part on the nature of the planned improvements, with complex projects requiring a more formalized review, and basic alterations not requiring advance approval.
When a board's or architectural committee's approval is required, the process usually starts with the homeowner or his or her agent submitting written plans for review. Review committees will often create application forms to be submitted along with the plans. Depending upon the community's rules and applicable state law, the committee or board may also schedule an approval meeting before rendering an official decision. See, e.g., A.R.S. §33-1817.
An HOA has a duty to issue a decision within a reasonable time. Decisions usually need to be rendered in writing, explaining the decision-maker's rationale and must be unbiased and consistent with the HOA's governing documents.
Waivers can sometimes be granted if allowed under the HOA's rules. However, a board or committee cannot approve a waiver that would blatantly violate the community's declaration, absent a valid justification as to why the restriction cannot be enforced under the circumstances. Woodridge Escondido Property Owners v. Nielsen, 130 Cal.App.4th 559 (Cal. Ct. App. 2005)
For example, a reasonable accommodation required by the FHA could justify waiving an otherwise enforceable restriction under appropriate circumstances. An architectural review board's decision cannot be arbitrary and must be rooted in a rational basis.
A Florida court held that homeowners must have some sort of notice as to what is and is not permissible—whether via recorded restrictions or an architectural "pattern or scheme" actually existing in the subdivision. In other words, a decision cannot be based exclusively on the board's subjective preferences, and "architecture boards do not have power or discretion to impose only one style over another, based purely on aesthetic concepts." Young v. Tortoise Island HOA, Inc., 511 So. 2d 381 (Fla 5th DCA 1987).
Notably, though, the Tortoise Island case is limited to Florida, and some other states' HOA laws would likely allow greater discretion to review committees. See, e.g., O.C.G.A. §44-3-231(a).
After approval has been granted and a project completed, architectural committees will often conduct a final review of the finished project to ensure compliance with the approved plans. If an improvement involves more complex construction, the HOA may conduct periodic inspections during the construction process to ensure compliance, providing the homeowner with notice of any non-conformities, deficiencies, or violations.
Home Improvement Projects Without HOA Approval.
As noted earlier, HOA approval is only necessary if the association's governing documents require approval for improvements of the type contemplated by the homeowner. Otherwise, if approval is not required and the declaration and other governing documents do not place any restrictions on the potential project, the HOA will not have grounds for objecting. Of course, you might still need approval from the local planning commission or comparable body, but that is a separate issue.
On the other hand, if approval is required and you opt to move forward without securing it—or if you start an improvement project that's disallowed under the declaration—the HOA has the authority to intervene.
Typically, a board will start with a formal letter demanding that you cease and desist construction until approval is granted and bring the property into compliance with restrictions. If that does not do the trick, an HOA can impose fines and suspend facility privileges (to the extent allowed by state law and the community's declaration). See, e.g., N.C.G.S. §§ 47F-3-102(12), 47F-3-120; Fla. Stat. §720.305(2).
If remedies provided under the governing documents are insufficient, a board, acting on behalf of the HOA, has the standing to pursue an injunction preventing a non-compliant homeowner from proceeding with the improvement. See, O.R.C. §5312.13; N.C.G.S. §47f-3-102(4).
When that happens, the association files a civil lawsuit naming the homeowner as the defendant and asking a judge to enter an order forbidding further construction and requiring the property to be returned to a compliant state. A truly obstinate homeowner who continues non-compliant improvements in the face of judicial injunction risks being held in contempt of court, which can mean stiff legal penalties and even a stay in the local jail.
If non-compliant improvements have already been completed, an HOA can ask a judge to enter an order requiring the homeowner to return the property to a compliant condition. If you just painted your home a disallowed color, you might have to repaint it. Or, if you constructed a nonpermitted structure—like a fence that's too tall or made from the wrong materials—there is a good chance you will have to take it down.
Either way, you will be on the hook for the cost of remedying the unauthorized construction and, in all likelihood, the attorney's fees incurred by the HOA.
The bottom line is that, when it comes to HOA architectural approvals, the old saying about it being easier to ask for forgiveness than permission is not all that accurate. Instead, if an HOA is wrongly refusing to approve modifications or improvements, a homeowner can try for a better outcome using the democratic process inherent in HOAs or the legal system.
As noted above, there are several reasons why an HOA's rejection might be unenforceable. If an HOA is relying on subjective determinations not rooted in the declaration and which don't serve any legitimate purpose—or if the HOA relies on architectural guidelines involving matters the declaration does not authorize the board to regulate—a homeowner can argue that the association is acting arbitrarily and exceeding its authority.
Or, if the HOA is enforcing a restriction that has previously been ignored or only sporadically applied, a homeowner can argue selective enforcement. And, of course, if an HOA policy conflicts with state or federal law—such as a restriction banning the display of the American flag—the restriction is unenforceable on its face.
HOA members generally have standing to file suit against their associations for failure to comply with the community's declaration. However, even if a civil suit is unsuccessful or is not an approach the homeowner is interested in pursuing, recourse may still be available through the HOA itself.
Owners can organize with other members and attempt to remove a troublesome restriction by amending the community's declaration, which usually requires approval by a super-majority of voting members. Moreover, owners can also run for the board and, if elected, propose rule changes.
The HOA laws in a few states require or strongly encourage pre-suit mediation before the institution of lawsuits between homeowners and homeowners' associations. Fla. Stat. §720.311; N.C.G.S. §7A-38.3F(b), Tex. Prop. Code § 209.007(d).
Mediation with an experienced, qualified third party can be a helpful way to reach a compromise acceptable to both parties. So, if you have a conflict with your HOA, proposing alternative dispute resolution (ADR) with an unbiased third party can be a smart way to find a solution without incurring the expense, time, and inconvenience involved with civil litigation.