The following dispute between a homeowner and the Board of Directors involved house painting. More specifically, it dealt with color - what colors are acceptable, and who has the right to choose those colors.
The homeowners painted their house in early April of 2000. The color was matched to the accent color in the brickwork. The work was completed on April 11, 2000. Nine months after the house was painted, the Board of Directors sent the homeowners a letter stating that they had written new rules governing house painting and that the homeowners were now in violation of those new rules by painting their house a color that was not approved by the Architectural Control Committee (ACC). The first notice of this change was published in the Oct. 2000 edition of the neighborhood newsletter.
"Architectural Control Committee - Policy Change
The Architectural Control Committee (ACC) has been requested to review it's (sic) present policy of allowing homeowners to paint the exterior of their houses any color (or colors) they choose. At the urging of the Board of Directors, the ACC is now requiring homeowners who wish to paint/repaint the exterior of their houses to submit their color selection(s) to the ACC PRIOR to beginning work." Out on the Ridge, October 2000
The homeowners pointed out that the phrases "present policy," "now requiring," and the publication date (seven months after the house was painted) indicated that they acted in complete accordance with the regulations and practices as the Board of Directors defined them in April of 2000. By the BOD own admission, house painting did not require ACC approval in April 2000. They contended that their rights were grand fathered. The Board refused to honor their grand fathered status.
The Board defended their right to dictate color choices with a clause from article VI of the CC&Rs They quoted the clause as follows:
"No building, fence, wall, outbuilding or other structure or improvement shall be erected, altered, added onto, placed or repaired on any lot in the subdivision until the plans and specifications shall first submit to the ACC a complete set of plans and specifications for the proposed improvements...."
This clause, they said, could be interpreted to mean anything they want it to mean. The homeowners read the clause and found that the Board had altered the clause and omitted some illuminating phrases; the section as it appears in the CC&Rs actually reads as follows:
"No building, fence, wall, outbuilding or other structure or improvement shall be erected, altered, added onto, placed or repaired on any lot in the subdivision until the complete plans including site plans, grading plans, floor plans depicting room sizes and layouts, exterior elevations, any other plans or information deemed necessary by the ACC for the performance of its function..."
The homeowners also found that the objectives of article VI and that of the ACC were clearly stated in line four of paragraph five, which made interpretations unnecessary.
"The goal of the Committee is to encourage the construction of dwellings of good architectural design, quality and proper size compatible with Declarant's conceptual plan for the subdivision. Dwellings should be planned and designed with particular attention to the design and aesthetic appearance of the exterior and the use of such materials, which, in the sole judgment of the Committee, create an attractive blend with existing and proposed dwellings in the immediate area and the natural surroundings...."
Although the Board of Directors often refers to standard Shavano Ridge colors, the homeowner pointed out that no examples, paint code numbers, or manufactures web site addresses were ever published in the neighborhood newsletter. No effort was made by the Board to familiarize residents with any standard colors, and no mention was ever made that Centex homes offered a custom colors option to all homebuyers. After color choice became an issue with the BOD, they announced in the neighborhood newsletter that the design technique the homeowners had used (match/compliment their brick) would be the approved procedure for house painting.
"Residents must obtain ACC approval prior to repainting their homes in colors different from that of the builder. The paint must either match/compliment that of other SRhours' (sic) original color schemes or the primary brick color of their particular house. For those residents who have already had their homes repainted a different color from the original scheme and/or it does not conform with other residence color schemes or match/complement their brick, they will be instructed by the ACC to repaint their homes within three years from receipt of a notification letter." Out on the Ridge, February 2001
When the homeowners read this in February 2001, they believed their troubles with the Board of Directors had come to an end; however, two years later, the Board came back and threatened them with a lawsuit.
The Board had originally demanded the house be repainted in three years (Dec., 2003).
"You are hereby given notice that within three years of the date of the original letter sent (December 21, 2000), the above actions must take place...." Chris Miles-Shavano Ridge Homeowners Association, February 26, 2001
However, without warning, the Board threatened legal proceedings eleven months prior to that date. The homeowner received a letter from the Board's attorney on January 15, 2003, stating the following:
"...You have thirty days from the receipt of this letter to bring your property into compliance..." Manual Pelaez-Prada, January 15, 2003
The letter went on to spell out the financial damages that were implied.
"A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation." Manual Pelaez-Prada, January 15, 2003
In doing some checking, the homeowner found that the law the Board and their attorney were threatening the homeowner with was up for repeal in the state legislature. The law (Texas property code 202.004) placed all financial responsibility, win or lose, on the homeowner; Board members could not be held responsible for their actions. Due to the controversial nature of this law, Texas Senator Jon Lindsay and his subcommittee on POA/HOA abuses took it before the legislature and recommended repeal.
"Recommendation 1.12 - Repeal 202.004, Property Code, which provides that a court may assess civil damages up to $200 a day for deed restriction violations. Although most POAs do not ultimately seek damages, some associations cite this statute when they notify owners of violations which leads to unnecessary adversarial posturing."
The homeowners had concluded that the Board had attempted to use this law before it was repealed, and tried to sue in advance of the timetable they had set. The Board later claimed, in the neighborhood newsletter, that the lawsuit threats were sent in error, but the homeowners pointed out that in the 20 days it took them to prepare their response to the Board's threat to sue, the Board made no attempt to inform them that a mistake had been made. The homeowners concluded the threats were being used to harass and intimidate.
At that point the homeowners assumed that the problem stemmed from personal animosity on the part of some board members.
The homeowners visited with several other Shavano Ridge residents who had repainted their homes in colors that are completely unique to the neighborhood. In each case, they had acted without ACC approval and they had not had any trouble with the Board of Directors. The homeowners referred to this as an example of "selective enforcement," and claimed they were being singled out by the Board.
In describing the Board's actions, the homeowners quoted from the Shavano Ridge CC&Rs.
"...There shall not be revisions of any action of the Committee except by procedure for injunctive relief when such action is patently arbitrary and capricious."
In every instance listed above, the homeowners described the Board's actions as arbitrary and capricious and went on to say the Shavano Ridge Board of Directors continuously behaved in a manner unworthy of the positions of trust granted them by the homeowners of Shavano Ridge. They suggested that the Board step down.
On June 10th, 2003, at the request of the BOD, we met with them to discuss our differences in what they described as a neighborly "informal meeting." They ask that we come an hour before a scheduled meeting and that no one else attend.
The Community Associations Institute (CAI) recommends that hearings be public and impartial.
We ask that they state their position in writing as we had done prior to the meeting—they refused.
The CAI says that "complaints from neighbors should be submitted in writing to avoid changing stories and failing memories."
After a brief period of strained pleasantries, we were subjected to a string of legal threats and insults from six of the nine Board members present. Throughout this hour long discussion those five Board members and the representative from the management company displayed contempt for us and our opinions. There was absolutely no effort on the part of the BOD to compromise in any way.
The Community Associations Institute's Report number 15 titled "Communications for Community Associations" suggests group communication guidelines for Board members. Had the Board exercised some of these suggestions, a great deal of the animosity that has developed over this issue might have been avoided.
Since Feb. 4, 2003, when the BOD received our written response to their threat to sue, they have been unable to respond to the evidence we have collected in support of our position. When given the opportunity to respond at the meeting, the only defense they could muster with regard to the their own written words, which clearly supported our position, was the repeated claim that they cannot be held accountable for anything they put in print. When ask to reveal the “standard Shavano Ridge colors,” they refused. When ask for color suggestions, white was all they would say.
The CAI recommends that the board of directors maintain a book of samples, brands of paint, paint numbers, and the addresses of houses painted with that color.
When ask for details regarding the complaint against us, they couldn’t remember details and kept no records.
HOA attorney Jordan Shifrin advises that "members of the association must be willing to come forward and notify the Board or file complaints when rule violations occur. They must also be willing to give testimony to prove the accusations."
The Board finally admitted that they made the complaint.
Mr. Jordan says that "a Board member cannot vote or even sit on the reviewing tribunal if he or she is a complaining witness or an accused."
In spite of the fact that we agreed we would submit our color choices to the BOD the next time our house needed painting, the BOD insisted we paint it in Dec. 2003 or face a lawsuit. We offered to canvas the whole subdivision and let the homeowners decide the issue; to that they replied, “we don’t care what the homeowners say.” Proving to us, at least, that they have completely lost touch with those they are suppose to represent.
The CAI recommends "as with all rules and regulations, it is a good idea to survey the community."
The BOD indicated that because the CC&Rs put them in such an advantageous position as compared to the homeowner, they need not concern themselves troublesome questions of fairness and propriety. With every fact we presented, we were met with, "we don't care; we're not accountable; and we're going to sue you." And the meeting ended. Their Vision At this meeting, we were told that the BOD have decided that Shavano Ridge will reflect a high degree of standardization. Blandness was stated as the goal. All homes must blend into a collective whole. “No homes will be allowed to stand out.” None can be “striking.” We believe that standardization is best suited to apartment complexes and commercial parks. Our Centex representative confirmed that the developer was trying to avoid blandness and standardization by restricting brick colors to non-adjacent homes and offering a custom colors option.
In December of 2003, the homeowners submitted six color selections to the ACC; two of the colors were matched to the colors of homes in the neighborhood - all were rejected.
The homeowners made another request that the management company (Association Management Services) reveal the source of the "standard Shavano Ridge colors" as well as a clear description of those colors - the request was ignored.
The homeowners invited the representative from the management company to tour the neighborhood with them and compare colors - this invitation was also ignored.
The homeowners submitted a second group of six colors from the Lowe's chain of home improvement centers pallet of colors, which were not available in 1994 when the development was completed and were still not available in 2000 when the property in question was repainted. These colors, according to the ACC, were "in conformance with the ACC's stated house paint requirements."
The second repainting of the house was completed on January 12, 2004. Eighteen days later, a representative from the ACC called the homeowner and ask for a confirmation that the home had been repainted; the homeowner assured them that it had.
In the March 3rd 2004 issue of the San Antonio Current an ACC member had this to say:
"He repainted and the paint just got darker. It's still orange. But he abided by rules."
The rules in this case are new rules conceived solely by the board seven months after the fact. What this statement seems to be saying is that is was not about right or wrong, fairness, or even color, it was about control.
Cost to the homeowner: over $2,000.00.