Courtesy of the Montgomery County Commission on Common Ownership Communities
Architectural control is one of the primary reasons behind the existence of every common ownership community (COC), whether it is a condominium, cooperative, townhome, homeowner or community association.It protects you against your neighbor storing trash in his yard, building an ugly fence, painting his house purple, or any of a thousand other visual “monstrosities” that can reduce the value and marketability of your home as well as your pride in the appearance of your neighborhood. Although the COC’s governing documents may grant the community broad control over architectural matters, the community’s authority is not unlimited.
How is architectural control established?
Architectural control is the legal authority over individual homeowners granted to COC’s by the governing documents filed in the land records of the County.Through the very act of purchasing a home in a COC each purchaser agrees to abide by that authority and its standards.That authority is exercised by fellow homeowners from the same community who may be the elected members of the board of directors, or board-appointed members of the architectural review committee.
What is architectural control?
Architectural control is a common ownership community process which relies, essentially, on homeowners applying for prior written approval of the changes, additions or alterations that they wish to make to their home or unit in the community.It may also include changes to the lot’s landscaping and the construction or installation of structures on the lot such as fences, sheds and play equipment.As a homeowner, you maybe be offended at having to ask for permission to make reasonable changes to the appearance of your home.Remember, however, that reasonableness, like beauty, is in the eye of the beholder.The owner of that purple house probably believes the color is not on reasonable but beautiful as well.The only way you can be protected from neighbors with questionable tastes is if you, too, are subject to that same process.
What is the importance of prior approval?
Prior written approval is the most effective way to achieve architectural control.It helps avoid wasted time and money spent on changes and alterations that may ultimately have to be dismantled or redone.It prevents needless rancor between neighbors by allowing the discussion of proposed changes before they happen, rather than after they’re completed.Prior written approval provides the community an opportunity to offer useful and often welcome advice and suggestions of which the homeowners may not have been aware.Finally, prior written approval protects both the homeowner and the community from needless future disputes over what changes have been authorized.
What are some essential terms that I need to know?
Architectural Review Committee (ARC): the body of people responsible for inter-
preting and administering a community’s architectural rules and or CC&R’s. It is
also called the Architectural and Environmental Control Committee, the Architec-
tural Review Board, the Architectural Covenants Committee, and the Covenants
Architectural Change Request (ACR): a document required by most COC rules
which the owner must submit to obtain permission from his ARC for the changes
the owner wishes to make.The ACR must usually state the details of the changes.
CC&R’s: Covenants, Conditions and Restrictions
Common Ownership Community (COC): in Maryland law, a development subject
to a declaration enforced by a homeowners association, residential condominium,
or cooperative housing association.
Condominium: real property subject to a condominium regime established pursuant to the Maryland Condominium Act.
Cooperative: homeownership arises from membership in a corporation coupled
with a possessory interest in real property.Owners have an exclusive right of
possession in a specific unit, creating a legal relationship of landlord-and-tenant
between the cooperative and the member, and evidenced by a proprietary lease
Governing documents: formal legal documents governing a COC, which include,
but are not limited to, articles of incorporation, declaration, bylaws and covenants.
Homeowners association: a legal entity established under the Maryland Homeowners Association Act and having the authority to enforce the provisions
of a declaration.It can be incorporated or unincorporated.
Homeowners Association Depository: a filing system established by the Maryland Homeowners Association Act, Sections 11B-112 and 113 of the
Real Property Article of the Maryland Code, the purpose of which is to make
available all the association’s documents to its members.The laws require
all homeowner associations to file all their documents with the clerk of the
Circuit Court of the county in which the association is located. Required documents, including bylaws and rules, which have not been deposited, are
unenforceable until they are deposited.
Prior written approval: written approval, requested and obtained in advance for additions, alterations or improvements to a home or unit in a COC.
Recorded governing documents: governing documents for COC’s which must
be recorded in the land records or in the Homeowner Association Depository
in order to be enforceable.
What are the responsibilities of the ARC?
Your COC’s recorded governing documents should identify the ARC’s general responsibilities, charging it with establishing, developing and issuing control over specific architectural standards for the community.For simplicity, we refer to the Architectural Change Request as the “application”.The documents may establish:
- the standards and guidelines for architectural details, changes or improvements,and periodic updates to the standards and guidelines;
- the duty to obtain the ARC’s prior written approval (usually through a written application) before making changes, additions or alterations tothe property;
- the maximum cost and length of time for the review of and decision onthe application;
- the maximum length of time that the ARC’s approval is valid, and the maximum time the owner has to complete the improvement;
- the appeal process if the owner disagrees with the ARC’s decision;
- the process for correction of violations or the enforcement of the COC’s governing documents and architectural rules;
- the right or duty of the ARC to conduct periodic inspections to ensure that work in progress or completed has received ARC approval and conforms to the community’s architectural rules; and also to ensure that the properties are being properly maintained and kept in good repair.
How many people should serve on an A RC?
The numbers can vary and are usually stated in the governing documents.If the documents don’t give a number, we recommend that it be an odd number of no less than 3 members.
Who can be a member of the A RC and how are members chosen?
Usually, the governing documents will say who are the members and how they are chosen.Since the A RC regulated changes proposed by owners, it makes sense that the members all be owners in good standing.If members are appointed by the board of directors (which is usually the case) we recommend that a newsletter article or the like be used to invite owners to apply for positions on the A RC.
Sometimes the governing documents state that the board of directors will also be the A RC, or that if there are not enough volunteers for an A RC, the board will act as the A RC.
How is the A RC chairperson chosen?Is there a time limit on the term of office?
The governing documents will specify how the chair is chosen and what are the term limits.
Do all COC’s have the same rules?
No.They can change considerably from one association to another.You must read your own association’s recorded governing documents carefully.
A re a COC’s governing documents the only places where its rules are found?
No.Many COC’s expand or modify their architectural rules from time to time.Typically, the A RC makes a proposal for a rule, which should be circulated to the owners, and adopted by the Board of Directors.(Homeowner associations, but not condominiums or cooperatives) must file their rules and rule changes in the Homeowners A ssociation Depository.)
Why are A RC standards, guidelines and regulations adopted in some communities?
Many governing documents are very general in terms and do not set specific architectural standards.Instead, the governing documents delegate the power to set architectural rules to the A RC or the Board of Directors.This approach enables communities to modify standards and rules as time passes and community preferences change.
What kinds of architectural control issues do the governing documents usually cover?
Some governing documents go into great detail, while others do no more than to establish an A RC and grant it general authority.You must review your own community’s rules.Here are some examples of the kinds of things that an architectural control policy normally includes:
- restrictions on the use of a unit or a lot;
- nature and location of signs which can be displayed;
- requirement of detailed written applications to make changes (including to change paint colors);
- the duty to maintain all structures, lawns and property in good condition;
- time frames for completing improvements and changes;
- restrictions on play equipment, lawn furniture, ornaments, sheds, etc.
- pre-approved standards;
- procedures for appealing ARC decisions;
- penalties, including fines and other charges, for violation of the rules.
Do I have to submit an application to the A RC if I want to make changes?
Yes, most COC’s have an application requirement and process for submission of detailed written plans related to the proposed change, addition or alteration.
If I want to put up a swing set, and I can’t find any mention of swing sets in my governing documents, do I still have to submit an application for them?
Just because you don’t see the item specifically mentioned, doesn’t mean it’s not covered elsewhere.You should contact the community manager or the A RC chair to verify whether an application is needed, and if you are told it is not needed, get that in writing.
If I get a building permit to install a deck at my house, do I still need approval for the deck from my A RC?
Yes, you do, if your community regulates decks (and most of them do).The building codes only regulate how the structure is to be built; they do not override community rules on whether you can build the structure or not, or how it must look.The building codes are in addition to your community’s rules.
I have my A RC’s permission to build an addition on my house.Do I have to have approval from any other agency?
Yes, you might. A RC approval does not relieve you from your other legal obligations to obtain the necessary permits, to have the work done properly and safely, and to ensure it passes the required inspections.If the work is regulated by the County (or by your local City) you must apply for the proper permit from the building code office.You may also need to contact “Miss Utility” (1-800-257-7777) before starting the work, so that the utilities can mark their underground lines and show you where not to dig.(If you damage the underground utilities, you can cause serious personal injury, property damage, and service outages for your and your neighbors.)
How can our A RC learn to develop good standards, guidelines, and procedures?
Here are some tips:
- if your community has a professional manager, ask the manager for advice;
- ask other communities for a copy of their rules and procedures;
- contact public service organizations like the Maryland Homeowners Association or the Community Associations Institute (both are online) to ask for any publications that they may have for sale or to give you free.(Some suggested manuals available at www.caionline.org are: “Drafting Rules”, #5885; “Design Review”, #5877; and “Best Practices #2: Governance”, #1640.)You may also wish to read “Healthy Indoor Paint Practices”, available at the website for the County’s Department of Environmental Protection’s Publications page.
- read our Manual.
What should we do to make sure our architectural rules are legally enforceable?
Your association should ask its attorney to review them, if not when starting the process of writing the rules, then when the final draft is complete but before it is formally adopted.The attorney can review the rules to ensure that they cover the basics but do not overstep the A RC’s authority.
When the new rules have been reviewed by the attorney, the board should distribute them to the owners, and then formally adopt them at an open meeting of the board after receiving community input.
For new communities, the guidelines should be distributed to the members as soon as possible.
If the A RC or board of directors believes that an owner is in violation of the A RC rules, can it impose fines or other penalties?
The authority to impose penalties is found in your governing documents.(If you live in a homeowners association, the documents must have been filed in the Homeowners Association Depository.If your home is in a condominium association, Section 11-113 of the Maryland Condominium A ct outlines the procedures to be followed before a fine or other sanction can be imposed.)Fines or sanctions must bear a reasonable relationship to the nature of the violation.
In Montgomery County, after a dispute is found to exist, the COC must notify the other party in writing of that party’s right to appeal an adverse decision to the Commission on Common Ownership Communities.In addition, the COC must not take any action to enforce its decision against that party for 14 days after it notifies the party of the decision and the right to appeal.If the party does file an appeal or complaint with the Commission, there is an “automatic stay” of all actions (except court actions) by the COC against the party, until such time as the complaint is resolved or until the Commission decides the dispute.In other words, the COC cannot take any action to enforce or implement its decision until the case is decided, or the Commission lifts the automatic stay. (The automatic stay does not prevent the COC from suing in court to enforce its decision.) This right does not apply to associations located within the limits of the City of Rockville or the City of Gaithersburg, as they have not adopted Chapter 10B of the CountyCode.
When I bought my house, it had just been painted by the seller, but now the association is telling me that the paints are the wrong color and I have to repaint the house.Can they make me do this?
When you buy a home in a COC, the seller is obligated to give you a detailed disclosure of the rules, and to inform you of whether the COC says the home meets the community rules.If the seller fails to do this on request, you may have a legal claim against the seller.However, if the COC is properly enforcing a properly-adopted rule, then you are bound by the rules, even if the violation began before you bought the home and you must correct any outstanding violations.
However, you should ask to see the certification issued by the COC to your seller.If the COC certified that there were no violations at the time of sale, it may be bound by that statement, and cannot take action against the buyer of the home.
I submitted an A CR for a new window on my home 2 months ago but I haven’t heard any response from the A RC.What are my rights?
You should read the governing documents and architectural control rules very carefully.Some, but not all! rules say that if the A RC fails to act within 60 days after it receives the application, then the application is deemed to be approved.Even if you have such a rule, however, you should be careful about simply going ahead and making the change.Can you prove that the A RC received the application and that it wasn’t lost in the mail? Do you know for sure that the A RC failed to act, or was its response lost in the mail? We recommend you contact the A RC for information about the status of your application before you make any decisions.
If your community has no clear deadline, but has failed to act within 60 days, you have the right to file a complaint about its inaction with the Commission on Common Ownership Communities.
I submitted an application, and I later saw the ARC chair at a meeting, and he told me my application was fine.Can I go ahead and start the work?
No.We strongly recommend that you get the approval in writing.Most associations’ rules require written approvals from the A RCs, so an oral approval may have no legal effect.In addition, decisions must be made by a majority of the A RC or of the board, so one person does not have the authority to grant permission for a project.
I received written approval for a new deck, but I want to change the type of railing.Can I go ahead and make the change or must I submit a revised application?
Since most rules require written permission for all changes, you cannot vary from the terms of the approval you were given.If you want to make a change, however minor it seems to you, then you must submit a revised application and get approval for the change.The new railings you want might not meet the community’s standards, and if you install them without approval the community may have the right to make you take them down and replace them with approved railings.
A ll the houses in my area are white.I just painted my house white but the A RC is telling me that it’s the wrong shade of white and I have to repaint it again.Can they do this?
Yes, if you did not get approval for the type of white paint you used.The community is allowed to regulate the exact shades of paint used on the homes.Many communities have approved paint charts so you know exactly what to use.
I want to replace the front door of my house so that I can use my wheelchair more easily, but the A RC says I can’t install a door of a different design, and none of the designs they permit are wide enough for my needs.What are my rights?
The COC is required by Federal laws to allow physically disabled owners to make reasonable modifications to their homes that are required by their disability; otherwise, they run the risk of legal liability for discrimination against the handicapped.This does not mean they must approve every change requested, but they are required to approve changes necessary to allow reasonable access.They could, for example, require you to use a wider door of a style that is more compatible with the overall design of your house and the neighboring houses.If wider doors are not available in the styles they want, then they may have to approve the style you have requested.
My neighbor has satellite TV and has an exposed TV cable on his house 20 feet long.I have cable TV, and I have an exposed wire 5 feet long.But the COC is holding me in violation of a rule for having more than 2 feet of exposed wiring, and not taking any action against my neighbor.Doesn’t the COC have to have fair enforcement of the rules?
Yes, the COC must show it is consistently enforcing a rule, otherwise, it could be deemed to have waived a rule, or it could be engaging in improper discrimination.However, there is a good reason for the difference in your situation.There is a Federal Communications Commission (FCC) regulation that prohibits unreasonable restrictions on an owner’s right to install a satellite dish for TV reception anywhere on his private property, and as a result, the FCC has ruled that an association cannot enforce a rule against exposed wiring unless it can prove that the exposed wiring is unsafe or dangerous. But this law does not apply to cable TV installations, so you have to obey the COC’s rule.
I installed a security door on the rear of my house 7 years ago. I just got a notice from the COC telling me that security doors are not permitted in my neighborhood and that I have to take mine down or face a fine.Haven’t they waived their rights after so long a time?
No.If you installed the door without permission from your A RC, the rules can almost always be enforced, even if the violation has existed for a long time.The A RC might not have the right to try to impose fines on you going back 7 years, but as long as the rule remains in effect, they can enforce it prospectively, and charge you fines from the day it’s formally declared a violation.