Architectural rules and guidelines can be a tricky topic to navigate for board members and committees charged with leading community associations. In order to properly govern their communities, those serving on boards or architectural review committees (ARCs) must have a thorough understanding of their associations' governing documents, the enforceability of rules pertaining to architectural requests, their authority to adopt new rules and guidelines and proper procedures for the approval of such.
Before we dive in, an important thing to remember as you read is the priority control of governing documents. In other words, there is a hierarchy in place when determining which document ultimately rules, much like federal authority rules over state authority in our government system. This priority control is as follows with the first document listed (the declaration) being the "top dog". Your association’s governing documents may contain language that determines a specific hierarchy if there is a conflict between documents; however, following list usually applies.
- Supplemental Declaration
- Articles of Incorporation
- Restrictions and Rules/Design Guidelines
- Board of Resolutions/Policies
Board Authority Over Architectural Review
One would assume that a community association's board of directors has authority over the architectural review process, right? Well, most of the time that is correct. Unless governing documents specifically state otherwise, a community's board of directors has control over that aspect of the association. However, many community associations create ARCs and, in that case, the power of the board is delegated to the committee.
Rulemaking Authority Over Private Lots vs. Common Areas
Even though the board of directors has the authority to make community rules and regulations, there must be specific authority given to them in the community's declaration for them to regulate on-lot standards. Basically, this means that the board only has rulemaking authority over matters covered in the declaration and usually apply to the common areas/elements.
ARC regulations, however, only touch upon the actual private property of the members. Just as the board authority as given in the declaration doesn't govern members' private property, ARC guidelines do not govern what the association builds or does on common areas. Put simply, the board of directors has the authority to adopt rules and regulations that deal with common areas - for example pool hours, if the pool is staffed with a lifeguard, things like that.
Beware of Inconsistencies
Associations must be careful to not create inconsistent guidelines – in fact, they most often run into trouble when ARC guidelines are inconsistent with the declaration. An example of an inconsistency would be if a declaration required a minimum square footage of 2,500 and then an ARC guideline was put forth requiring a minimum of 3,000. One more important thing to keep in mind is that architectural guidelines should be about esthetics only - they should not relate to drainage, flooding or anything of that nature.
Evaluating the Enforceability of ARC Guidelines
Now that we've determined an architectural guideline must be consistent with the governing documents in order to be enforceable, we must next discuss how to determine the enforceability of these guidelines.
Let's use a general example to highlight enforceability. Say a community association wants to ban pets or a certain dog breed. First, the governing documents must be consulted - do they say anything about pets? If the documents are silent regarding pets - meaning they say nothing at all regarding the subject - the board doesn't have the authority to establish a rule limiting what members can do regarding pets. However, if the declaration were to say that the board may adopt reasonable rules and regulations regarding pets, the board would be within its rights to assert "we don't want to allow X type of pet in the community".
The same concept applies to architectural guidelines. If your declaration says that the ARC has the authority to adopt design guidelines, but the board tries to adopt design guidelines, that won't work as it goes against the declaration. In other words, you must be sure to check that the entity making the rule or guideline actually has the authority to do so.
Another thing that affects enforceability is whether the architectural guideline in question was properly adopted. Was it appropriately voted on per the governing documents? Many governing documents say that rules aren't enforceable until they're published to the membership - this is one that often comes back to bite boards and ARCs. What about the authority to enforce architectural rules one they're adopted? For example, if a potential violation is located in an owner’s backyard, is there an easement allowing association access to check for violations? If not, you might be wasting your time adopting ARC rules that you have no way to enforce.
Proper Procedures for Adopting and Approving Architectural Guidelines
Just as with most things related to the running of community associations, there are procedures that should be followed when adopting architectural guidelines. The baseline here is, of course, that the board makes all decisions on behalf of the association unless the governing documents state otherwise. So, to have a rule approved, this requires a majority vote or uniform written consent of the board (or of the ARC if it exists).
It also must be determined whether the rule up for consideration falls under the board's authority or that of the ARC. When it comes to political signs, for example, that would fall to the board most of the time because those are considered, by their very nature, temporary. Another critical factor here is determining whether approval from the membership is required or whether the new guideline needs to be published to the membership. This will be a case-by-case determination made by your governing documents as there is no statute in either North or South Carolina that determines this.
Challenges Related to Architectural Guideline Enforcement
When crafting ARC guidelines, association boards and/or committees must be careful not to create extra challenges for themselves. One of the biggest challenges lies in the creation and attempted enforcement of vague guidelines. Any rule that is too difficult to enforce or monitor will expose the association to additional liability, something that should be avoided at all cost.
Using vague terms to define esthetic or construction standards will inevitably cause trouble when it comes to enforcement because such terms are often highly subjective. If you attempt to enforce things like "coastal low country style" or "workman like construction" - what does that really mean? Those things could mean something different to each person you ask and are examples of terminology that should be avoided when creating ARC guidelines. Additionally, it is advisable that associations choose their battles carefully when it comes to arguments over color and style choices - unless a color or style is particularly heinous or off-the-wall, it is probably better to not waste your time trying to fight with property owners.
Community associations will inevitably have a few property owners who simply refuse to follow the rules and decide to build a shed or put up a fence without following the proper request and approval procedures. In these instances, boards/committees should think through the situation carefully and not simply seek to be punitive. If a member has built a shed on their property without permission, the board may ask itself "would it have been approved if they had followed procedure?". If so, the best course of action might be to have the member in question follow procedure after the fact but allow them to keep the building. Or, say a fence is knocked down during a hurricane and the property owners replace it with an identical fence in the same location. Do they need to go through the ARC process? Governing documents will determine this.
There are, of course, many other challenges community associations will face when it comes to ARC requests and violations, and some of them will be best solved by thinking outside the box. You can find more examples of challenges and outside-the-box solutions in our webinar presentation on architectural rules and guidelines.
Though you're probably sick of hearing about politics, political signs and anything to do with the matter (trust us, we are too), don't stop reading now! During election seasons, especially particularly contentious ones, political signs can be a hot button issue for community associations. Are there any regulations, government mandated or otherwise, that speak to the posting of political signs on members’ properties?
First, we must define a political sign: simply put, it is anything that shows support in favor of or against a candidate or issue that voters will vote upon. This, of course, isn't limited to just signs, but can be flags, banners or even things like scarecrows or mannequins.
North Carolina Regulations
In NC, regulations regarding political signs in community associations will depend on when your community was founded. In communities founded prior to October 1, 2005, the declaration must specifically state that you have the ability to regulate political signs (not just signs) in order for you to prohibit political signs in your community or regulate them beyond what state statutes say.
In NC communities founded after October 1, 2005, the first page of the declaration must have printed in all-caps, bold text "This document prohibits or limits political signs", as well as contain that text within the declaration itself, in order for signs to be regulated.
What if your community has no recorded sign restrictions? North Carolina law allows the board to promulgate a rule prohibiting political signs earlier than 45 days prior to an election and more than 7 days after the election. The size and number of signs may also be regulated. However, keep in mind that these rules may not be more restrictive than local political signs ordinances. So, if you try to say only one sign is allowed per lot in your community but the municipality or county allows for three, three signs are allowed if your governing documents don't mention anything about political signs.
We know there is a lot to unpack here and much of it will vary depending on which state your community is in, when it was founded and, of course what your governing documents say. To make this less of a potential headache, CAMS has some tips for board and committee members which will aid in making fair, reasonable decisions for their communities. If you have any questions regarding the ARC process in your community or need help understanding your governing documents, please reach out to the experts at CAMS via your owner portal or at 877.672.2267 for trusted guidance.
Please note: The attorney we spoke with for this piece is only licensed to practice in North Carolina. However, he informed us that while some of these guidelines may not be South Carolina-specific, some of these tenets will apply as best practices in both states.