HOAleader.com - Tip of the Week - July 1, 2022
Published: Fri, 07/01/22
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HOAleader.com - Tip of the Week - July 1, 2022
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An HOAleader.com reader asks if whether it's proper for a board to object and seek recission—after the window for objections has passed—after a local government has granted an owner's building permit. In this week's tip, we answer that question.
There's plainly information our experts would like to have to better understand what our reader is experiencing. Let's back up and explain what typically happens.
"Our process here, in a lot of communities we represent, is that the association will have its own architectural review process for these types of changes. That's separate from the municipal approval and permitting process," explains Stephen G. Davis, a Missouri- and Illinois-licensed attorney at Carmody MacDonald in St. Louis, which represents as many 250 condo and HOA communities at any given time. "In the reader's question, it sounds like it might be a larger exterior change, and that's why the reader went to the township.
"A number of our local municipalities will require owners have the HOA's approval prior to the city signing off," says Davis. "I've also seen it the other way, where the HOA will require a copy of the permit from the municipality as part of the architectural approval package. These are two separate processes that typically go hand in hand for many of these larger exterior projects."
Our experts would definitely like to know what the governing documents say about permitting from the municipality and as part of the community's own architectural review process. Without that information, it's hard for them to say whether this board is overreaching or acting within reason.
"I don't know if this is an overreach by this board," states Carolina Sznajderman Sheir, a partner at Eisinger Law in Hollywood, Fla., which represents 600-700 associations throughout the state, and an adjunct professor teaching condo law at Nova Southeastern University—Shepard Broad College of Law. "Let's say the owner has approval from the municipality to build a second story, and the HOA doesn't permit a second story to be added.
"That said, the HOA can't interfere with something its own documents permit," she adds. "If this HOA's documents are silent or ambiguous on what the permit allows, and then it opposes the owner's permit, then it's probably an overreach. The HOA can't interfere with the owners building something the documents permit."
A safety issue might be an entirely different matter. Our new article, Condo/HOA Modifications: Can a Board Try to Get a Township to Undo an Approval? (https://www.hoaleader.com/members/4542.cfm), explains why. It also explains what really might be happening in this situation.
Best regards,
Matt Humphrey
President
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