4.10 Architectural and Environmental Standards

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.10 Architectural and Environmental Standards²⁶⁷

A uniform exterior appearance in condominium communities is considered important for at least two reasons: (1) marketability; and, (2) maintenance of a community atmosphere. Thus condominium documents ordinarily restrict exterior changes in some fashion.²⁶⁸ In some cases there are detailed restrictions set forth in the condominium documents and in others an architectural review committee must approve exterior changes. For example a restriction in an Ohio association's documents read:

No building fence, wall or other structure shall be commenced, erected or maintained upon the properties nor shall any addition thereto or change or alteration thereon be made until the plans and specification showing the nature, kind, shape, height, materials, and location of thesame have been submitted to and approved in writing as to harmony of structural design and location in relation to surrounding structures and topography by the Architectural Committee.²⁶⁹

A South Carolina case, apparently not involving a condominium, addressed a similar restriction. In Midway Properties, Inc. v. Pfister²⁷⁰ there were restrictions reading:

No building shall be erected or placed on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Developer as to quality of workmanship and materials, harmony of external design with existing structures and as to location with respect to topography and finish grade elevation.
No fence, wall or barrier shall be erected, placed or altered on any lot unless similarly approved by the Architectural Committee.

A homeowner installed a satellite dish antenna without approval of the architectural committee. A declaratory judgment that the dish violated the restrictive covenants was sought. The trial court ruled that there was a violation of the covenants, and in affirming the appellate court, addressed some general rules of construction:

The general rule of strict construction of restrictions [against the party who seeks to enforce them] is not applicable if it will defeat the plain and obvious purpose of the restrictions.

The balance of the equities favors the enforcement of restrictions a property owner has freely placed himself under because other property owners in the restricted area have relied on the restrictions in purchasing their property.²⁷¹

When an architectural review board considers a request for approval, the South Carolina Supreme Court has said the board does not act as a fiduciary, need not specifically seek comment from owners, give actual notice of its meeting to adjacent owners who might be adversely affected by a request, or strictly follow its procedures for approval.²⁷²

Rather, when an architectural review board is vested with discretion to approve or deny requests for construction it has a duty to exercise its judgment "reasonably and in good faith."²⁷³ Generally, refusal to approve plans for aesthetic reasons will be upheld where a covenant provides guidelines for enforcement and expresses the purpose of the restrictive covenant.²⁷⁴ That a covenant vests discretion in a board to make a determination based on "aesthetics" does not make it ambiguous or indefinite.²⁷⁵ When a board is given discretion to disapprove plans on any ground, including purely aesthetic ones, the board need not base denial on a specific restrictive covenant.²⁷⁶ The general language of a covenant may be sufficient to deny a particular use or structure without an express designation or label.²⁷⁷

Architectural or environmental restrictions are often far more specific and extensive than those quoted above. Such restrictions may prohibit posting signs,²⁷⁸ displaying plants, installing machinery or wiring, and painting or altering exterior walls, windows or doors. Broad architectural restrictions have resulted in feuds over doorknockers and flags. The pressure on architectural committees and boards of directors to disregard these transgressions is great. However, failure to enforce stated restrictions presents a greater peril to the community than a gaudy doorknocker. A council of co-owners that fails to enforce its restrictions or refrains from enforcement until a truly flagrant violation occurs, may find itself estopped from enforcing the restrictions at all. Estoppel has been invoked where: the association failed to respond to a letter from the developer notifying it of the granting of an exception to a restriction;²⁷⁹ similar or identical changes have been granted to other unit owners;²⁸⁰ the association failed to take action to require owners to submit to an approval process;²⁸¹ and, the association failed to act within one year after the violation took place.²⁸² There is some authority that estoppel may be invoked where earlier changes have resulted in a non-uniform exterior appearance,²⁸³ but it has also been held by the South Carolina Court of Appeals in Kneale v. Bonds²⁸⁴ that waiver of the right to object to minor violations does not also waive the right to object to subsequent more substantial violations. Predicting when courts will invoke estoppel is a risky undertaking. For example, in The Fountains of Palm Beach Condominium, Inc. No 5 v. Farkas,²⁸⁵ the unit owner wished to build a patio on the common elements, and requested permission from the management firm. He was told the firm had no objections but that the association was in the process of transfer of control to the unit owners and the issue should be raised at an association meeting. When the owner did this the board said it had no legal status and could not grant or deny permission. At this point the owner must have assumed that no matter who was in charge, no one cared to object to his plan. He was wrong. He built his patio slab and the association brought an action for a mandatory injunction requiring its removal. The owner argued for estoppel, but the court, looking to a section of the declaration requiring written consent from both the management firm and the association before changes could be made to the common elements, held for the association. One wonders whether in such circumstances the association doesn't have a fiduciary obligation to inform the owner of such a provision and to warn him that he proceeds at his peril.²⁸⁶

A relatively earlier and significant case on the issue of estoppel is Plaza Del Prado Condominium Ass'n v. Richman. ²⁸⁷ The association attempted to obtain an injunction to require removal of a terrace railing that was inconsistent in color and material with the original railing. It failed. The association was estopped from asserting lack of compliance, said the court, because:

(1) The association waited more than a year after installation of the railing to notify the owner of the violation and seek compliance.
(2) Previously, other owners had been permitted to alter terrace railings.
(3) An agent for the developer had given permission for the change.

Thus the holding was based, at least in part, on a duty of the association to enforce its restriction in a timely way.²⁸⁸ However, issues of both selective enforcement²⁸⁹ and waiver are clearly raised in the case. While Richman would suggest that waiver through acquiescence is an ever present danger, other courts have seen matters differently.

The Virginia Supreme Court in Village Gate Homeowners Ass'n v. Hales²⁹⁰ agreed with an Ohio court that

... the party relying on such waiver must show that the previous conduct or violations had affected "the architectural scheme and general landscaping of the area so as to render the enforcement of the restriction of no substantial value to the property owners."²⁹¹

Hales notwithstanding, the consequences of failing to consistently enforce restrictions are onerous enough that councils of co-owners should vigilantly enforce their architectural uniformity restrictions.

Even the vigilant council may inherit a problem. Development corporations, although they may have drafted the restrictions, are, of course, strongly motivated to sell units and may relax the restrictions if a sale seems to hang in the balance. They also are generally disinclined to enter confrontations with owners over matters not affecting sales. When control of the condominium is transferred to the owners they may face a history of lax enforcement of architectural restrictions. May the owner controlled council enforce restrictions that were not previously enforced by the developer controlled council? Heritage...