DEAR BENNY: We bought a house in August 2009 and for one year our designer/architect was drawing the blueprints and obtaining the local city approvals. After we were approved, we started construction. Now we are stuck because our Architectural Review Board (ARB) does not approve of the exterior doors.
We have shown the board many options, and for every single door our ARB chairman is telling us that it is not appropriate and he does not like the door because it does not have enough of a traditional look.
We complied with every single exterior design he wanted, which made our project much more expensive. Right now we are facing a stalemate. Please help us. –Marianna
DEAR MARIANNA: I assume from your letter that you live in a homeowners association that has a requirement that any new (or remodeled) construction on the outside of the house must be approved by the association’s ARB.
This is a controversial area throughout the country and there has been a lot of litigation over the rights and responsibilities of such an architectural review committee.
Taking the ARB’s position first, there is a strong feeling among many homeowners that they want uniformity in their neighborhood. They don’t want McMansions built next door; they don’t want houses to be painted pink or purple; and they want all fences to be uniform.
There is some merit to this position, but in my opinion many ARBs go too far in enforcing what they believe to be their powers.
According to many court decisions, here are some arguments you can make to the ARB in your favor:
1. Is the ARB being arbitrary and capricious? Is the ARB going after you and not other owners who may have similar situations? According to most courts, the architectural standards must be applied fairly and consistently, and in good faith.
2. Have delays, or "laches," occurred? This means that the board has permitted a lengthy period of time to elapse before taking action against a unit owner. For example, one court ruled that a board’s six-month delay in filing suit against an unauthorized fence barred the board from enforcing the covenants.
If a unit owner is in violation of the architectural standards, or at least the board believes there is a violation, the board must begin prompt action to assure compliance of the standards.
3. Has the association (or the ARB) promulgated written guidelines? If not, a judge could find decisions of the ARB to be arbitrary.
4. Has a waiver been granted? Basically, if the board fails to enforce a covenant in the case of one homeowner in similar situations, it may be prohibited from enforcing the same standards against another homeowner.
Because this is community living, there has to be a give and take not only by the homeowner, but by the board as well.
Finally, you should review your legal documents. Typically, there is a time limit imposed on the review committee in which to respond. If you made a request for construction, and the ARB did not promptly respond within the time restraints in your legal documents, you may have a good case.
I would threaten the ARB that you will have to file suit if you cannot reach an acceptable resolution within the next two or three weeks.
DEAR BENNY: I need further clarification on a paragraph you recently wrote. It reads: "When only one spouse signs the promissory note, the lender will require the non-signing spouse to be on the deed of trust. Why? Because in order to foreclose on the property should the borrower go into default, the lender must be able to sell the property at a foreclosure sale.
The deed of trust gives the lender the power to sell the house. But if the husband and wife own the property together, unless both sign the deed of trust, the property cannot be foreclosed upon." –Paula
DEAR PAULA: Let me try to explain. In most states, mortgage lenders use deeds of trusts. Oversimplified, these are the mortgage documents. You sign a promissory note — "I owe the bank X dollars and agree to pay under the following terms and conditions."
You also sign a deed of trust. With this document, you are deeding — in trust — your house to a trustee. The trustee, selected by the lender, has the power to sell the house outside of the purview of a court of law — although many states are now requiring that courts have to get involved somewhere in the process.
If you and your spouse own the house, and both convey — through that deed of trust — the house to a trustee, the trustee technically has full rights to sell at a foreclosure sale.
But if only one of you signs that deed of trust, the other owner has not given the power to sell to the trustee, and, accordingly, there can be no foreclosure sale. The lender still has the right to sue both of you on the promissory note you both signed, but foreclosure is not possible.
DEAR BENNY: You were wise to offer only general advice to a reader trying to avoid probate for her children. If she is a California resident, her mobile home is treated as personal property unless she owns the underlying real property. The title is held through the Department of Housing and Community Development and the title is more akin to that of a motor vehicle. Just thought you’d like to know. –Joan
DEAR JOAN: The laws differ from state to state, which is why I usually have to give only general advice, and urge my readers to consult with their own legal and tax counselors. To my knowledge, mobile homes in some states are considered real — not personal — property.
Even the federal income tax laws have different impact in the community property states out West.
DEAR BENNY: I own a vacant lot and want to build a house on it. I know I need good contracts with my architect and builder. Where can I locate those documents? –Harry
DEAR HARRY: I am glad you asked this question, because too many times, consumers don’t have good contracts with their contractors and end up in trouble. I suggest that you go to the American Institute of Architects’ website www.aia.org, where you will find a large list of contracts (36 in number) that will meet your needs.
For example, there is "A102 — Standard Form of Agreement Between Owner and Contractor," where the basis of payment is the "Cost of the Work Plus a Fee with a Guaranteed Maximum Price"; or form A103, which is similar to A102 but without a guaranteed price.
Another form for homeowners who have specific projects in mind is A107, the "Standard Form of Agreement Between Owner and Contractor for a Project of Limited Scope."
Not everyone is planning to build a new home, but because of the economy, many homeowners are remodeling — and even expanding — their present home, rather than buying a new one. In my law practice, I have had too many clients who signed what I call the "two-page special" contract between homeowner and contractor. This document merely spells out what the contractor will do, in very general terms, and the price.
However, it does not have the protections that are included in the AIA contract forms. For example, when will the job start and when will it end? What reserves will be held until the job is completely finished? I like to see at least 15 percent of the price held back until completion, although sometimes I can get the contractor to agree only to a 10 percent reserve.
What warranties is the contractor giving? What happens if there is a dispute between the parties — do you have to litigate, or arbitrate, or can the project architect (if any) resolve these issues?
Is there a draw schedule for payments? Too many of my clients have paid the contractor upwards of 80 to 100 percent of the contract price and the contractors walks off the job having completed far less than that.
All of these issues must be included in any contract where the job will cost at least $10,000 or more. Actually, I would like to see a good contract in place for any price job, but that’s not always practical.
Bottom line: Preventive action must be taken before any job (large or small) begins, and the AIA contracts are a good place to start.