Reviewing HOA Architectural Change applications 1

[LOTE]

I got a request from an HOA to review Architectural Changes to Property applications. It's mostly reviewing when a homeowner wants to install a fence to make sure it is not in an easement or if it is that they also get proper permits. Or if they are installing a retaining wall, confirming it won't affect the HOA's drainage system.

This is something I am competent in, but I am not licensed in the state where this HOA is located. I run a solo practice. My question is, since I would not be performing any engineering per se, just approving or rejecting on behalf of the HOA, is there any legal/ethical reason I could not take on this project? This is something the elected HOA officials could do, but they do not feel competitent nor have the time to do so.

I would obviously disclose that I am not licensed in that state.

 

[JStructsteel]

Knowing what I know about HOA and how strict, finakey, and litigious they can be and the people in the HOA, I would decline to have anything to do with it. If its such a casual review, why not just tell the HOA to have the persons involved hire a surveyor, engineer, etc to prove to them its allowed. Then they can sign an approval letter.

 

[LOTE]

JStructural, the HOA has already created a checklist of what is required for homeowners that includes everything you listed. However, homeowners either don't understand the requirements or don't think they apply to their situation. Due to the size of the community, it is more than a volunteer position can handle to review all the submittals to verify they have provided the necessary info. That is why they are farming it out to an outside firm.

 

[EnergyProfessional]

JStructsteel is right.

There is nothing to gain from this "assignment" and all to lose. If you don't even live in that neighborhood, I really see no benefit. And if you live there, there always will be a neighbor who will hate your decision. either because you disapproved their project, or because you approved their neighbor's project.

IMHO all that HOA stuff is just unnecessary rule making beyond what the government governs. Half of the covenanters are not legal these days anymore anyway. Here where I live older neighborhoods still have rules that houses are not supposed to be sold to people of certain color.... Obviously no one obeys that rule and it wouldn't stand up in court (I hope!), but that is the type of rule making you will be asked enforce. Our HOA is newer and still forbids satellite dishes (no one enforces that) solar systems (no one enforces that either), hanging up clothes etc. It is basically made up by people who decided too much freedom is not good and we need to rule how our neighbors live for no reason. And the few actual engineering rules (i.e. erosion control) should be governed by the municipality, or storm water utility etc.

 

[JStructsteel]

LOTE, I can just see a better than average lawyer making it a issue for you, even if you disclose you are not 'practicing engineering' etc. Perhaps help out whoever is doing it now, but let them sign their name to it.Dealing with a HOA is like having a motorcycle. Its not 'if' it will bite you, but 'when'. Good luck whatever you decide.

 

[FacEngrPE]

At least this part of the virginia deed law is fixed. How about your location?

https://law.lis.virginia.gov/vacode/title55.1/chapter3/section55.1-300/[/URL]]No deed recorded on or after July 1, 2020, shall contain a reference to the specific portion of a restrictive covenant purporting to restrict the ownership or use of the property as prohibited by subsection A of § 36-96.6. The clerk may refuse to accept any deed submitted for recordation that references the specific portion of any such restrictive covenant. The attorney who prepares or submits a deed for recordation has the responsibility of ensuring that the specific portion of such a restrictive covenant is not specifically referenced in the deed prior to such deed being submitted for recordation.

https://law.lis.virginia.gov/vacode/36-96.6/[/URL]] § 36-96.6. Certain restrictive covenants void; instruments containing such covenants.

A. Any restrictive covenant and any related reversionary interest, purporting to restrict occupancy or ownership of property on the basis of race, color, religion, national origin, sex, elderliness, familial status, sexual orientation, gender identity, status as a veteran, or disability, whether heretofore or hereafter included in an instrument affecting the title to real or leasehold property, are declared to be void and contrary to the public policy of the Commonwealth.

B. Any person who is asked to accept a document affecting title to real or leasehold property may decline to accept the same if it includes such a covenant or reversionary interest until the covenant or reversionary interest has been removed from the document. Refusal to accept delivery of an instrument for this reason shall not be deemed a breach of a contract to purchase, lease, mortgage, or otherwise deal with such property.

C. No person shall solicit or accept compensation of any kind for the release or removal of any covenant or reversionary interest described in subsection A. Any person violating this subsection shall be liable to any person injured thereby in an amount equal to the greater of three times the compensation solicited or received, or $500, plus reasonable attorney fees and costs incurred.

D. A family care home, foster home, or group home in which individuals with physical disabilities, mental illness, intellectual disability, or developmental disability reside, with one or more resident counselors or other staff persons, shall be considered for all purposes residential occupancy by a single family when construing any restrictive covenant which purports to restrict occupancy or ownership of real or leasehold property to members of a single family or to residential use or structure.