Mixed-Use Communities: The Residential Tenant's Perspective

Architectural Review Committee

Inevitably, residential tenants will want to personalize their unit and make alterations after taking control of the premises. Often, this will conflict with the developer's desire to protect the consistency, aesthetics, and (most importantly) the marketability of the community. Therefore, when a residential tenant wants to make any alteration to the premises, the residential tenant is subject to relatively burdensome guidelines, approvals, and procedures. For example, all plans, designs, and specifications for proposed work must likely be submitted to an architectural review committee (or similar entity) for approval. Most declarations contain strict rules and procedures that must be complied with prior to starting any work. The restrictions not only determine what type of work will be performed, but in some cases, who will be approved for performing the work. Moreover, the approval process can be highly subjective, and approval is not guaranteed. An example of the language setting forth these guidelines is as follows:

Except as provided herein, no Tenant, Occupant, or any other Person (including, without limitation, the Association) may make any encroachment onto the Common Elements or Limited Common Elements, or make any exterior or interior change, alteration, or construction in or to a Unit (including painting, utility work and/or alteration, installation of alarms and/or alarm systems, and landscaping), nor erect, place or post any object, sign, clothesline, speaker, playground equipment, light, storm door or window, door knob or knocker, artificial vegetation, exterior sculpture, fountains, flags, or thing on the exterior of the buildings (except for reasonable seasonal decorations displayed in only windows between Thanksgiving and January 15), in any windows (except window treatments as provided herein), on any Limited Common Elements or on any other Common Elements, without first obtaining the prior written approval of the Architectural Control Committee (ACC).

Usually these architectural review committees are the sole arbiters of alteration applications and may withhold approval for any reason, including purely aesthetic considerations. Moreover, the committee is often endowed with the power to stop any construction that is not in conformance with approved plans. If a tenant decides to make an alteration to her unit without first seeking the permission of the architectural review committee, the tenant does this at her sole risk, and the unauthorized alterations may be subject to possible removal by the association at any time. If the alteration was made to the common area, then sometimes these changes are allowed to remain without reimbursement to the tenant for any expense. Although these rules are strict, a careful residential tenant should make sure the community's declarations contain some flexibility for variances from compliance with design criteria.