If They Build it, ARC Will Come
Sheds, decks, hardwood flooring, and, yes, baseball fields. Homeowners associations and condominium owners associations in Washington and Oregon almost universally restrict what owners can and cannot construct on their lot or in their unit, and most use some version of an Architectural Review Committee (“ARC”) to enforce it.
Construction restrictions can exist directly in recorded covenants, an association’s Declaration, in its Bylaws, or in Rules adopted by the Board. For the most part, these restrictions are intended to preserve the aesthetics of the community, as well as the peaceful enjoyment of every owner’s unit or lot.
As a first step, members of an association’s board of directors or ARC should pay attention to any construction in their community. Is there heavy equipment outside one particular house? Is a contractor requesting access to the loading dock? Have any of these owners submitted an ARC application? These are early indicators that something is happening in the community that should not be ignored. Now, I am not encouraging roving bands of board members to inspect every lot or unit on a weekly basis – but if something is obvious, do not let it go. Ask more questions, find out what is going on, and start the process to determine whether the construction activities might require ARC or Association approval, or represent a violation of the association’s governing documents.
But what happens when an owner decides to build anyway? Maybe the owner applied to build a shed, as he or she was supposed to do under their association’s ARC regulations, but didn’t like the answer they received. Maybe the owner skipped the application process altogether and just decided to build a deck off of their third story condo unit. Whatever the factual circumstances, these situations create serious enforcement and liability issues for community associations that, if not handled timely and correctly, can have long-lasting impacts on the association.
Some associations have provisions in their governing documents that state failure of the board to provide a decision on an ARC application within a certain amount of time renders the application approved. If your association has this kind of language, it is critical for the Board to stay on top of the ARC applications received, and to maintain a schedule for responding.
If your association would like assistance in reviewing the ARC language and enforcement policies in its governing documents or application process, or if there has been any unauthorized construction in your community and you need assistance evaluating enforcement options, Barker Martin can help. We have helped many associations interpret and enforce their ARC provisions in situations where owners have inadvertently overlooked, or even willfully ignored, the community’s ARC provisions. Please let us know how we can help your community.