The authority to approve or deny certain construction or alterations is a common feature of homeowners’ associations (“HOAs”), and most HOA governing documents contain some sort of provision requiring prior approval from the HOA for construction or alterations to the private properties within the community. In fact, other than paying assessments, seeking approval for construction may be the most common reason many homeowners have for interacting with their HOA. Many HOAs have designated architectural review committees who are tasked with reviewing the applicant’s plans and determining whether the plans are approved or denied, which takes this time-consuming task away from the HOA’s Board of Directors. In other HOAs, the Board of Directors fills this role themselves. Regardless, we know these applications can pile up, and it can be challenging to review them as promptly as the applicant would like, especially in light of all the other responsibilities of HOA leadership, but your HOA’s governing documents may provide a particularly compelling reason to ensure you are responding to architectural review applications in a timely manner.
In our practice, we have found that many HOAs’ governing documents provide that if the HOA fails to approve or deny submitted plans within a certain period of time, then the plans are deemed approved.
Unfortunately, HOA boards or architectural review committees are sometimes unaware of these provisions until it is too late and construction that would have otherwise not been permitted has been deemed approved by virtue of the HOA’s failure to render a determination in the time allotted. These provisions often require the HOA to render a determination within thirty or forty-five days from the date the plans were submitted. Of course, each HOA has its own governing documents, so it is important to be familiar with any specific provisions or time constraints in your own documents.
If your HOA’s governing documents do contain a time-sensitive review provision, it would be prudent to enact a review procedure/schedule that ensures decisions will be rendered within the time allotted. The HOA should also be careful to avoid even perceived failures to comply with the timeline based on technicalities. For instance, the HOA may want to ensure that it delivers the determination to the applicant within the time allotted rather than simply informing the management company of the decision and risking the management company not delivering the decision to the applicant on time. While every case is unique and the HOA may even have compelling arguments as to the justification of their timing, it is nevertheless advisable to respond well within the time limits to avoid unnecessary challenge.
Even if your HOA is not subject to an express time constraint on its architectural review decisions, it is still advisable to ensure that applications are reviewed and addressed within a reasonable timeframe.
An unreasonable delay is not only unfair to the applicant, but also risks the eventual decision being challenged on the basis that the HOA had effectively waived its right to deny the application by its inaction. While such a challenge may not have merit, it could nevertheless be a point of conflict best avoided.
This article is not intended to be an exhaustive discussion of the legal implications of time constraints found in HOA architectural review provisions, nor any guarantee regarding the outcome of litigation regarding the same. Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions you may have regarding HOA architectural review procedures. Please contact us at (803)-724-5000 for further information.
Article by R. Myers Truluck, Jr.
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