Can Your Association Require A Survey as Part of the Architectural Process?

Harmony Taylor

For some property owners, the Coronavirus pandemic has been an opportunity to spend some meaningful time at home working on long neglected projects. This could mean finishing up a landscaping plan, cleaning out a natural area, or finally getting around to building a fence. As owners go about these tasks, it is inevitable that some will ignore or not be aware of the architectural approval process. This may be a good time for boards to- in a friendly way- check in with their neighbors and  provide a refresher course on the necessary steps to get an architectural change submitted and approved. Requirements are usually spelled out in the declaration of covenants for a community, but they may also be addressed in the bylaws or in separate architectural guidelines. Because the architectural language is drafted by lawyers, it can be confusing and overly wordy. Sometimes even the architectural control committee (ACC) struggles to really understand what can and cannot be required as part of the approval process.

To help with this issue, I offer the following example of (shortened) typical declaration language

No building, fence, signs, wall, antenna or other structure shall be commenced, erected, or maintained, nor shall any exterior addition to or change or alteration therein be made, unless three copies of the plans and specifications showing the nature, kind, shape, type of materials, and location of the same shall have been submitted to and approved in writing by the architectural control committee…

This language is fairly straightforward. It states that the ACC can require three copies of plans, and can require documentation showing what the improvement will look like and where it will be located on a lot. I interpret this language to mean that the ACC can also require photos of the exact color something will be painted, or the exact type of shingle that the owner wants to install. However, nothing in this language would require an owner to obtain a survey to show where their improvement will be located, and nothing in this language would justify an ACC requiring an owner to go out and get an engineer to certify that whatever they are building is structurally sound. This may seem odd, but remember- it is not the association’s role to “guarantee” that any project does not encroach on a neighbor’s lot or that it complies with state or local ordinances or building standards. The association’s role, usually, is just to make sure that the improvement looks pretty. Or, to put it in legalese, is “harmonious with existing structures and improvements in the vicinity and consistent with the overall design scheme.”

There are some situations where the governing documents will require surveys, engineered plans, or other certifications of fitness before an improvement can be built. In those situations, the association can and should require that these items be obtained before any approval can be given. If this type of language is not in the governing documents, however, the association should tread carefully. Requiring someone to go out and pay hundreds of dollars for a survey, or more for an engineer’s certification, is a substantive requirement that likely could only be imposed with an amendment to the governing documents.

Please feel free to reach out to any of Black Slaughter & Black’s community association attorneys to discuss architectural issues facing your community.