If you build it, they will complain

Q: I did not have enough storage space in my house, so I bought a nifty storage shed and put it up in my backyard. Today I got a letter from the homeowner’s association telling me that I have to take it out or submit an improvement. Do they have the right to tell me that I have to remove my storage shed or ask their permission?

A: They probably do. The rights of a homeowners association’s Architectural Control Committee are spelled out in the governing documents for the Association, usually called “Declaration of Covenants, Conditions and Restriction” or a “Declaration of Protective Covenants”. Most Declarations in residential subdivisions provide that no buildings, structures or improvements may be erected, altered or modified unless the plans have been approved. Often the covenants are very detailed as to what must be submitted and to the procedures that needs to be followed. Sometimes the covenants state that approval is required, leaving the specific procedure to be followed up to the individual community. Architectural Control Committee (“ACC”) issues are frequent problems in property owner associations. The requirement to get ACC approval usually extends not only to building new things, but to altering or modifying existing structures. Typically, ACC approval is required if you are going to paint your house, stain your fence or install a storage shed.

The purpose of requiring ACC approval is to try and make sure that property values are preserved. One thing that people find hard to understand is that it is important for the ACC to require that the appropriate information be supplied after the fact even if it is not supplied beforehand. This is because if the Association does not require compliance with the ACC approval process for every activity that requires it, then when somebody builds something that would be entirely unacceptable, the ACC could potentially be powerless to enforce the covenants if they did not do so previously. This is the legal theory of “waiver”. It is beyond the scope of this article to discuss the full contours of waiver law. Suffice it to say that there has to be such a pattern of not following the covenants so as to demonstrate that the covenants no longer serve a purpose with respect to the particular restriction being violated.

ACC approval is an important component of property owner association membership. So long as members and ACC members communicate there usually is not a problem. If you did not get permission to install your storage shed (which is sounds like you did not) you are strongly urged to cooperate with the ACC requirements now so that this issue can be resolved. If it is not resolved through the ACC process informally, then the Association has the right to bring a lawsuit to require you to remove the shed, to impose fines and to request that you be ordered to pay legal fees.

By Tom Newton, Jr., NRC Board Member