Deny it within 30 Days, Or Live With it Forever

This article goes out to all of those homeowners who are civic-minded, vigilant, or crazy enough to serve on their HOA's Architectural Control Committee (ACC). If your Declaration of Covenants, Conditions and Restrictions (the "Declaration") sets forth a time limit for approving or denying homeowner improvement applications (usually a 30-day window), then by all means DON'T IGNORE IT and make sure that the ACC has taken some form of action (and reduced it to writing or some format calculated to reach the applicant) -- or else that charteuse-marbled electric-neon stereophonic bird bath may become a permanent fixture in your neighbor's yard.

The inspiration for this article arose from a Corpus Christi Appellate Court case that was decided last year. See Huntington Park Condo. Ass'n, Inc. v. Van Wayman, No. 13-05-00464-CV, Tex. App. Ct., Feb. 28, 2008. In that case, the soon-to-be homeowner had submitted an ACC application before he ever even purchased a unit in the Condominium complex seeking the addition of an enclosed patio area to his prospective unit. The ACC did not respond to the application and the homeowner purchased the unit, then subsequently built the patio enclosure some three (3) years later. The HOA then sued the homeowner for violation of the Declaration and sought injunctive relief including the removal of the patio enclosure. THE HOA LOST. TWICE.

How could this happen? After all, when the application was submitted for the patio enclosure, the individual wasn't even a homeowner yet. Why would the ACC even need to respond to such an application then? It's called ESTOPPEL. Estoppel simply means that a person or entity is precluded from taking a subsequent action contrary to a previous action (or inaction) from which another person relied upon.

In this example, the homeowner relied upon the ACC's failure to respond to the patio enclosure application and purchased the condo unit under the presumption that when the homeowner was ready to build, the HOA would not prevent it. The Court ruled that the patio enclosure was a "fundamental factor" in the homeowner's decision to purchase the condo unit, and so the ACC's failure to respond to the application was an implicit ratification of the homeowner's requested improvement. Therefore, the HOA was precluded, or ESTOPPED, from preventing the installation of the homeowner's patio enclosure. The ACC also had the duty to conduct due diligence on the application as part of its mandate under the Declaration and the Court ruled that the ACC had failed in that regard.

Bottom line: if you serve on the ACC, and you receive an application for an improvement by a homeowner (or a prospective one!) then RESPOND to it, or you might just be stuck with an unpleasant consequence (cue the neon bird bath reference above).

*Thanks again to the CAI Law Reporter for the original case cite and synopsis of the case.