The scope of architectural review by a Community Association

I. INTRODUCTION

Owners of residences within a community association frequently engage in a dispute with their community association concerning architectural control. This may arise in several different circumstances. This may arise where the owner wishes to construct a second story to the residence and the association denies the request to add a second story. Alternatively, the owner’s neighbor may be planning to add a second story to the residence which will obstruct the adjacent owner’s view of the ocean, city lights or hillside and/or invade the adjacent neighbor’s privacy with intrusive second story windows. The association approves the neighbor’s second story addition. The owner may wish to dispute the decision of the association in either of these circumstances.

The issue presented is whether the owner can successfully dispute the architectural decision of the community association. In many circumstances, the owner can do so. This article is intended to provide the owner with guidelines for such a dispute.

II. ANALYSIS

The governing documents (such as the declaration of covenants conditions and restrictions) of a community association generally state that the architectural committee or the board of directors must approve changes to the owner’s property. Sometimes, the provision is broad enough to include any physical change to the owner’s property. Other times, the provision is restricted to exterior changes to the owner’s property that may be visible from the common area. In any event, the issue frequently arises as to the scope of authority of the board of directors or the architectural committee. In particular, does the association have unlimited authority or discretion in deciding which architectural changes may be permitted or is the association limited in any way. While the association has broad discretion in deciding whether an architectural change should be permitted (Dolan-King vs. Rancho Santa Fe Association (2000) 81 Cal.App.4th 965), the association’s authority is not unlimited and is restricted by the governing documents, state law and court decisions.

A. The Governing Documents

The governing documents may restrict the scope of architectural review by the Association. The governing documents are generally the declaration of covenants conditions and restrictions and the architectural guidelines. These documents may contain restrictions or guidelines as to what may and may not be approved by the association. For example, the governing documents may state that no second stories, no wood-burning fireplaces, or no vinyl fences are permitted.

B. State Law

State law also provides limitations. The primary statute is Civil Code Section 4765 entitled Architectural Review and Decision Making. This statute provides the following requirements:

1. 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. The procedure must provide for prompt deadlines. The procedure must state the maximum time for a response to an application or a request for reconsideration by the board.
2. A decision on a proposed change must be made by the association in good faith and may not be unreasonable, arbitrary or capricious.
3. An association’s decision on a proposed change may not violate any governing provisions of law, including the Fair Employment and Housing Act (Government Code Sections 12900, et al), the building code or other applicable law governing land use or public safety.
4. A decision by the association on a proposed change must be in writing. If a proposed change is disapproved, the written decision must include both an explanation of why the proposed change was disapproved and a description of the procedure for reconsideration of the decision by the board.
5. If a proposed change is disapproved, the applicant is entitled to reconsideration by the board at an open meeting of the board. This paragraph does not require reconsideration of a decision that is made by the board or a body that has the same membership as the board.

In addition, Civil Code Section 4765 states that the association must annually provide its members with notice of any requirements for association approval of changes to property, that the notice must describe the types of changes that require association approval and must include a copy of the procedure used to review and approve or disapprove the proposed change.

C. Case Law

There are architectural restrictions that have been created by case law. For example, in Cohen v. Kite Hill Community Association (1983) 142 Cal.App.3d 642, the Court held that an association has a fiduciary duty to its members with regard to architectural decisions and can be liable to a member for authorizing an architectural change to a neighbor’s property (deck extension into neighbor’s easement area) that interferes with the member’s property rights. In addition, vague architectural review standards will not be enforced. The standards must be reasonable. Palos Verdes Homes Association vs. Rodman (1986) 182 Cal.App.3d 324 (the standards for solar collectors were found to be reasonable). Further, an association may not enforce its architectural requirements if the association does not follow its own specified procedures. Ironwood Owners Association IX v. Solomon (1986) 178 Cal.App.3d 766. In Ironwood, the association neglected to follow its own rules for enforcement of the architectural requirements and therefore could not enforce its architectural requirements against an owner. Finally, an association may not make architectural decisions that exceed the scope of its authority. Ticor Title Insurance Company vs. Rancho Santa Fe Association (1986) 177 Cal.App.3d 726 (no authority to require 50 foot setback for a tennis court, where the CC&R’s specify a 20 foot setback); Fountain Valley Chateau Blanc Homeowner’s Association v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743 (no authority to act as a “nanny” and require hoarder to clean out his residence).

 

For more information on this topic, as well as other topics relating to community association law, you may wish to see the author’s California Homeowners Association Members Guide (updated in 2015) which is available at the author’s website at www.rossrealestatelaw.com.