May board members simply “act” as an Architectural Committee (ACC), where the CC&Rs specifically require that the ACC must be “appointed” by the Board?
This was the issue before the California Court of Appeal in the recent case of Whitehawk Ranch at Hubbard Homeowners Association v. Bolin (unpublished), decided on May 10, 2016.
In Whitehawk Ranch, the Association’s CC&Rs stated that the ACC consists of three persons who must be “appointed” by the Board of Directors. The CC&Rs further required that homeowners obtain ACC approval before making any property improvements and authorized the ACC to adopt Architectural Standards. Despite these provisions, the Board failed to formally “appoint” an ACC, and the ACC arguably did not properly adopt Architectural Standards.
Ms. Bolin began constructing her house without submitting any plans. However, after the Association obtained a TRO halting the construction, Ms. Bolin finally presented her plans for ACC approval.
Three Board members, who stated that they were “acting” as the ACC, voted to disapprove Ms. Bolin’s plans. Ms. Bolin then sued the Association on the basis that it had no legal right to block construction of her home since the Board had not properly “appointed” the ACC.
The Court of Appeal disagreed with Ms. Bolin, finding that the Association’s Board members could properly “act” as the Architectural Committee:
[N]othing in the law or practice governing the functions of a homeowner association, including the CC&Rs involved in the current case, required that the members of an association’s board of directors, and the members of any committees that are formed to assist the board of directors in performing their governing duties, must be comprised of different individuals. Further, it is not uncommon for members of an association’s board of directors to sit on the association’s committees, particularly when their are few or no volunteers to sit on such committees…
The bottom line: This is a good case for HOAs, as there are times when the board (either mistakenly or intentionally) does not formally appoint architectural committee members, and simply acts and makes decisions as the de facto ACC.