It is rare to find an architectural committee (AC) in commercial developments, which are often controlled by the original developer. However, architectural committees are often found in residential developments where homeowners want to maintain the overall look, feel, and value of the development in order protect their home investment. The provision for an AC is found in the Covenants, Conditions & Restrictions (CC&Rs) filed with the Clerk and Recorder, which then controls the land described in the CC&Rs.
Some homeowners ignore the requirement to submit plans and get approval of the AC. And, some, if they’re unhappy with the decision of the AC just go ahead and build what they want. A recent California case confirmed that it’s expensive when you don’t comply! The same principal would apply if there were a commercial AC.
The Stantons decided that they wanted new casement windows on the front of their home in a condo development controlled by CC&Rs. Those are normally included as part of your Homeowner Association (HOA) documents, or “docs.” You know that packet of 50-or so pages you receive just before you close on the purchase of your home. The boring and detailed material you have to read when you get home from work when you’d rather just relax for a while.
The CC&Rs often provide what kind and size of animals you can keep on your property, where you can park your car, and what you have to do if you want to make additions or changes to your property. Often (usually) there’s an architectural review committee (ARC) and specifications as to paint colors permitted for the exterior of your property. In the Stanton’ development, the ARC had a policy of maintaining a dark shade of brown on windows that generally faced the street of the development.
The Stantons applied to the ARC for approval to permit them to install two sandstone-colored casement windows on the front of their home, along with an application to make other exterior improvements. The ARC denied the Stantons the right to install the sandstone casement windows. Notwithstanding the denial, the Stantons went ahead and installed the sandstone-colored windows! The Association then filed suit asking for injunctive and declaratory relief requiring the Stantons to modify or replace their windows AND for the Association’s attorney’s fees.
You can see the type of brown windows the ARC liked, although not taken from the actual development involved in this dispute.
Here’s a sample of sandstone windows. Again, not taken from the actual development involved in the dispute. However, it does give you an idea of the difference between “brown” and “sandstone.”
So, who do you think won in the litigation, and how much were the attorney’s fees awarded to the winning party?
Of course, the Association won. The Association asked for $83,0227.50 in attorney’s fees and $4,298.72 in costs. The trial court approved the costs, but cut down the attorney’s fees to $59,122.50 plus the costs! And the Stantons had to replace the windows to comply!! That pales in comparison to the $ 318,293.50 awarded to the attorneys representing the Rancho Santa Fe Association in their dispute with a homeowner who refused to take down a fence she had put up without the appropriate approval, but that’s a story for another day.
So, don’t forget to apply to the Architectural Committee for approval of your changes, and don’t proceed without approval!
Lee Sterling is a retired Colorado real estate lawyer, who represents commercial tenants looking to buy or lease commercial space.