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HOA Architectural Review: Can an HOA Reject Your Request?

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Posted by Duane McPherson, CMCA, PCAM® on Feb 9, 2018 8:06:00 AM

The short answer is: Yes, an HOA can reject your request for modifications that fall outside of the covenant restrictions.

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The longer answer is more complicated. Your HOA architectural review committee may reject your request for a number of reasons, but the core tends to be that they feel your modifications negatively affect the look of the community. Your response, thus, should focus on why your case is different.

This is called requesting a "variance," and you should think about how your specific modification works with the general rules. For example, you may request a fencing variance if the location of your lot is such that the fence will not be visible from the street. Here are the steps a homeowner should take:

1. Research whether the requirement is legal. For example, if you are being told you cannot install solar panels, your state may have a rule that says you have the right to do so.

2. Make a written request for a variance. The CC&R should contain a form. There is often a fee attached to make up for the extra work you are asking the board to do. Be very clear on why you are asking for a variance. Is it based on lot location? Your household circumstances? The law? Bear in mind that if you are trying to fight a rule you think is unreasonable, you might be better off trying to influence the board or even get on the board yourself.

3. Prepare for your hearing. You will have an appeal hearing in front of the architectural committee. Come to it well-prepared and with all of your arguments lined up. Be ready to lose - HOAs seldom grant variances. Also, be ready to compromise. Maybe they will let you have the solar panels, but they will have to have a specific design, color, siting, or whatever.

4. Consider whether the matter is worth taking to court. If what they are restricting is legal then you are likely to lose and may end up paying their court fees.

For architectural committees, you should take steps not to be "that" community association. Having a reputation for being an unreasonable stickler can reduce home values in your community and put off buyers. Here are some recommendations:

1. Don't grant every variance. If you do, then you might as well change the rule (on the other hand, the rule may be an old one that needs to be changed). If a lot of variance requests are coming up regarding the same rule, then it is probably time to revisit that rule and whether it still serves a purpose for your community.

2. Always ask yourself how to grant the variance without ruining the rule, rather than looking for ways not to. Unless the request is completely unreasonable, you should consider whether refusing the variance puts a hardship on the owner. Of course, some requests may be neither completely unreasonable nor hardship-related. Think about how denying the variance will look, especially if it is something disability-related.

3. Know the law. If you have an illegal rule, then you may not be able to enforce it and should consider changing it.

4. Consider whether the variance will increase community maintenance costs (and thus everyone's dues).

5. State all reasons in writing whether you are denying the variance or allowing it.

6. Be fair and keep a note of past precedents, so you do not appear to be arbitrary about what you allow and 

Above all, seek compromise. For example, you may require that a modification is removed when the home is sold (if it is reasonable to do so). You might allow the wooden fence, but place restrictions on the color. Remember that the job of the review committee is to balance the needs of everyone in the development, including the person requesting the variance.

If you are looking for more information about how HOAs can fairly enforce architectural and other rules, contact GrandManors today.

Other sources:

GrandManors Management for Aging Communities

Duane McPherson, CMCA, PCAM®

Duane McPherson, CMCA, PCAM®

Over 30 years experience in property and community association management Professional Community Association Manager through the Community Association Institute (CAI) Former GM/CEO of a large-scale association: mixed-use commercial, residential and recreational Contributor to National industry experience