Mediating Homeowners Association Disputes |

Mediating Homeowners Association Disputes

Q. What rights does a homeowner have when a homeowners association violates its own rules? In my development, you have to get approval from the HOA to make exterior changes. The bylaws say the HOA will respond within 30 days. There’s a long list of consequences if a homeowner doesn’t follow procedures; it doesn’t say anything about what happens if the association doesn’t. It has been 75 days since I sent my landscaping proposal. I’ve spend the last 30 days hounding the HOA and property management company to do something. Can I get them declared in breach of contract or something? A. Jonathan Tycko, a Washington lawyer who specializes in real estate disputes: Homeowners associations typically are structured as mini-republics, governed by a board of directors that periodically stands for election. So, if you are not getting help from the board, you might be able to exert pressure by rallying your neighbors to complain to the board members. After all, this is your problem today, but it could be your neighbor’s problem tomorrow. A board that is not complying with the association’s bylaws is one that should probably be replaced. But if neighborhood politics do not work, then you could consider litigation. In general, courts view bylaws and other governing documents of a homeowners association (or another similar entity, such as a condominium association) as a “contract” between the members of the association and the association itself. So, where an association violates its own bylaws to the detriment of a member, that member could sue the association. Rules that require association preapproval of changes to a member’s individual property have been subject to litigation around the country from time to time. In some cases, courts have held that an association’s failure to act on a member’s request within the applicable time frame results in a “waiver” of the association’s right to disapprove of the requested changes. The filing of a lawsuit – or even a credible threat of a lawsuit – may spur the association’s board or its management company to get its act together. And if not, then a court ultimately can decide the issue. Michael Nagle, a Columbia, Md., lawyer who specializes in real estate disputes: Most homeowners association documents require the board or architectural committee to respond to architectural applications (including landscaping) within a certain time period (usually 30 or 60 days). If the association does not respond, the application is deemed approved. It does not sound as if the governing documents in this association have the automatic approval provision, but the homeowner should check. Although the owner deserves closure, volunteer boards are busy and sometimes do not get to things because they have more pressing issues or folks are on vacation and they cannot achieve a quorum. The other owners should not have to put up with some awful architectural or landscaping change just because the board or committee did not get to it. The best bet for the owner in question here is to attend the next board meeting in person and try to get the board to act on the application. Failing that, the only alternative would be to file an action in court.

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