Denial Of Architectural Requests: Avoiding Litigation

Many associations have provisions in the governing documents that require a Unit Owner to submit plans for modification or alteration to their property. It is important for the board to be careful when making a denial, and to actually make the denial within the parameters provided in the documents.

Scenario 1: A unit owner submits a request to install a fence on his property.

He submits to the architectural committee, as is required in the association’s documents, detailed plans on the placement, material, height, and cost along with a map of his property delineating where the fence will be placed. Per the documents, he is entitled to a written decision within thirty days or his request is deemed approved. The thirty days pass and he receives no approval or denial from the association.

The owner installs the fence and the association seeks its removal stating it was never approved. In this scenario, the unit owner prevails because the association did not follow the documents requiring a written response to his request.

Scenario 2: A unit owner submits and obtains permission from the association to install an addition.

The unit owner is informed that any modifications to the plans must be approved. The unit owner later submits plans to install a larger addition, which are denied. The specific reason for the denial is that the larger addition violates the setback provisions in the documents. The unit owner builds the larger addition despite the denial by the association. The association seeks removal of the addition. In this type of scenario, the association would prevail. The association gave the unit owner a specific reason for the subsequent rejection, which was related to the proposed modification to the addition that would violate the governing documents. Approval of the modified plans was not unreasonably withheld
because there were specific restrictions
prohibiting the installation of the addition past the setbacks.

Scenario 3: A unit owner submits plans to the architectural committee to install a screened in patio enclosure.

These types of enclosures are permitted per the governing documents of the association and the plans are approved by the association. The unit owner then installs an addition to the home with French doors and full floor to ceiling glass windows. The exterior of the enclosure has roofing and siding materials installed to match the house and the enclosure has heating and air-conditioning ductwork installed. The association seeks the removal of the addition to the home stating that what was installed by the owner was not what was approved by the association. The association won the argument and the unit owner was forced to remove the addition to the home. In this type of scenario, there was no denial of a plan submitted, but the plan submitted was not followed. It is important to
check the progress of some of the larger unit owner projects to ensure what is being installed is what the association approved.

It is important to remember that even if your documents provide the architectural review committee broad discretion in approving or denying requests, many unit owners will take a denial personally or believe that such denial is unfair or against their rights as an owner.

Giving concrete reasons for a denial can help to circumvent those issues and show that the denial was not arbitrarily given. If you fail to state a reason for the denial and a member challenges the association in court, if the association cannot show a fair and rational reason for the denial, the court may decide that the decision was unfair and allow the member to make a modification that the association does not find is in the best interest of the community.

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