Keeping Up the Standards of the Neighborhood

There is little doubt that when a community buildout goes as planned, the recently top-coated streets, brand new paint and immaculate landscaping often present the picture of an “ideal” neighborhood.  Unfortunately, time works its magic as paint peels, tree roots sprawl and pavement cracks.  What, then, is the Association to do to uphold the community standards that the first owner-elected Board of Directors was left with?  The answer is the use of architectural control combined with the maintenance obligations imposed by the covenants.  The purpose of this article is to provide advice – and issues to look out for – when attempting to ensure that the aesthetic condition of the neighborhood is maintained over time.  It is important to note that the authority granted by the covenants differs from community to community, so be sure to consult professionals before acting on any advice below.

Architectural Control

The purpose of an architectural control provision is to ensure a particular aesthetic standard in a community as it grows and evolves over the years.  This standard is subjective – meaning that it can change from board to board.  Because of this, each application for a modification to the exterior of a dwelling or Lot should be treated in a thoughtful and fair manner.  The following are recommendations that may help chart a course to keep a neighborhood looking as it good as it did when new:

1. Some covenants allow the association to create guidelines.  These guidelines can vary greatly in what they contain, but often they provide the procedure for submitting a modification application and include helpful information regarding what is authorized in the community.  Examples might include types of approved mailboxes or approved paint schemes and roofing material.  While guidelines are often not legally required, they can ensure consistency over time when responding to owner applications.
2. Keep good records of the reasoning behind approvals or denials.  Keeping meeting minutes that show the issues that were considered when deciding how to respond to an application can go a long way both in defending a claim that the decision is “arbitrary and capricious” and in allowing future boards to implement the same strategies.
3. Be Reasonable!  Sometimes a new board comes in wanting to “change” the way the community looks.  However, odds are good that if certain improvements have been allowed over the years it will not be possible to “put the genie back in the lamp.”  Many cases over architectural issues can be avoided by a thoughtful board or committee that understands that sometimes what a certain group of people desire must give way to the reality of what has been done in the past.
4. If you are going to change standards for something that has been allowed in the past, set the expectation with the members.  This can be done by guideline revisions, by email blast, at meetings, etc.  Letting owners know of a change ahead of time can avoid a lot of strife. 

Maintenance Obligations

The counterpart to architectural control is each Owner’s obligation to maintain the improvements that already exist.  Nothing can sap property values more than the slow degradation of the exteriors of homes in the community.  Keeping the association looking its best requires methodical and periodic oversight by the board and management.  Below are some pointers to ensure a solid legal basis:

1. Many covenants authorize the board to create reasonable rules regarding maintenance.  These can set out expectations for things like:  (1) expected lawncare standards; (2) exterior dwelling surface upkeep and (3) tree/shrub care.  
2. Keeping up with maintenance requires periodic inspections.  Failure to routinely perform visual inspections of the community not only allows maintenance violations to worsen, but it makes it hard to prove that the association is doing a proper job of enforcing the standards that make the neighborhood attractive.  We recommend deferring to a property manager to determine what constitutes “industry standard” for maintenance inspections of property.
3. Don’t play favorites.  This means more than not intentionally targeting a problem owner -it means doing your best to treat each scenario in a similar fashion to other, similar issues.  It is human nature to ignore “minor” violations while sending a “major” violator a laundry list of concerns.  Doing this, however, just gives the problem owner the ability to argue that they are being treated differently from a neighbor who has the “same fading paint.”  
4. Don’t forget about self-help (sometimes called “abatement”).  This term describes the authority of the Board to perform work on an Owner’s lot and charge them the fee.  While this can be legally problematic, it is often a great way of keeping the community in good condition while dealing with a problem owner.  It is important to consult with your property manager and attorney before taking this step.

One of the major benefits of a planned community is having a board in place to keep the expectations high for homes and lots.  However, it is only through setting reasonable standards and by remaining vigilant that a board can ensure that the condition of a community remains at the level the owners saw when they first purchased their homes.