R.A. from Litchfield County writes:
Dear Mister Condo,
Our Association has received a variance request to modify a deck. What guidelines exist if we were to allow this?
Mister Condo replies:
R.A., condo association Boards receive requests for variances of all sorts. Anything that falls under the category of architectural compliance falls to the Board for review and approval or denial. The request could be to add a hot tub, replace a window or slider with a new style, and even building a new deck or modifying an existing deck, like the request you are now facing. The Board needs to take these requests seriously and look at not only the immediate ramification but also the long-term consequences of granting the request, or, in your case, the modification of an exiting deck.
I am not aware of any particular set of guidelines to help the Board evaluate and make a decision but I would suggest you begin with the association’s by-laws and rules about improvements and/or modifications. For the most part, the path of least resistance is to deny the request and keep the association intact as it was originally developed. This makes it easy for the Board to maintain architectural compliance and provides precedent for future modification requests. However, it is entirely possible that the Board sees great benefit in allowing the modification, in which case they should proceed with caution. In fact, I would go so far as to get an opinion form the association’s attorney before granting the request to avoid a legal quagmire down the road. Let me give you an example.
Let’s say the Board approved the modification without being too specific. The unit owner pays a contractor to come and perform the initial work. In two years, the unit owner sells and leaves the association. Shortly thereafter, the deck shows signs of failure. Since the deck was modified, who is responsible for its maintenance and upkeep? How about the materials that were used? How about the choice of stain? How about the neighboring unit owner who now has to look at a larger deck or wants one of their own? Does granting this one unit owner permission to modify the deck mean that all other unit owners can do the same? How will the Board determine who to say “yes” to and who to say “no” to? Will that open the association up to claims of discrimination and a possible lawsuit? As you can see, it is far simpler for the Board to simply deny the request than to open up all of these potential problems.
You may have noticed that I am regularly asked about who is responsible for modifications that have been approved by the Board. The answer invariably comes down to how was the modification approval handled. In many cases, the modification approval was too broad without getting into specific agreement about these questions. If your Board is seriously thinking of granting this approval, I hope they will consider all of the ramifications. Ideally, they will also discuss the matter with the association’s attorney who is the only one qualified to give them legal advice on the subject. All the best!
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