J. Patrick Sutton Cases & Issues Blog

Architectural Control Committee Swagger

I've seen it over and over in my HOA practice over the past 9 years: HOA architectural control committees that run amok and terrorize subdivisions by substituting their judgment for that of homeowners in even the most trivial of design and construction matters. Most horrifying are the icy building-plan-rejection letters in which the ACC (or a member thereof) assumes the tone of autocrat, dismissing the homeowner's proposals summarily and ordaining a list of things the ACC requires. It is, frankly, scary — but then, I chose not to live in an HOA. As will be seen, however, even avoiding living in an HOA doesn't insulate a homeowner from those who live to pass judgment on others.

As I've seen countless times, HOA's and their committees — and indeed the whole HOA Industrial Complex — treat individual homeowners like inconveniences and impositions, impediments to the smooth functioning of HOA's. If only there weren't human beings in this place, everything would be fine. I've watched as ACC members stride blithely and supremely upon another owner's land and dictate building and landscaping requirements as though the property were their own.

A few months ago, I ran into an ACC chairman from a subdivision one of my clients had sued several years before. I remembered his face but couldn't place him until he began spouting his theory of HOA ACC authority: "These homeowners," he said in frustration, "act as if they have some say in the matter. They don't seem to understand the kind of power the ACC has." He proceeded to tell me how he puts these upstart owners in their place when they nag and complain about ACC rejection of their building plans or ACC notices of violation for offending shrubbery. It was yet another depressing validation of what I've seen in so many lawsuits, mediations, site visits, and depositions: a certain number of people have a compelling need to control the lives and property of others, and these people go out of the way to put themselves in positions to do just that. ACC's, of which there are many hundreds or thousands in Texas alone, are the perfect vehicle for terrible people to terrorize others in a legally sanctioned way.

Texas law does restrain architectural control committees by forbidding "arbitrary and capricious" decisions, and homeowners occasionally win legal challenges on that basis. But it remains true that many deed restrictions grant ACC's very broad powers, and there seems to be an inexhaustible supply of people willing to exercise that power to the utmost.

In theory, it is true that people buy homes in HOA's with notice of what is in the deed restrictions. In practice, however, real estate agents and title companies don't emphasize for buyers what those long HOA declarations really mean. Nor do most people understand the HOA governance problems that allow a few homeowners to concentrate and maintain power over the HOA board and the ACC. Often, by the time I am called, a group of control freaks are already entrenched, and the process of addressing that requires thousands of dollars in legal fees. For many people who come to see me, the only real option under these circumstances is to sell and get out — just what the types of people who want to control ACC's want.

In my own, in-town old neighborhood, there is no HOA or ACC, but that has never stopped a small group of homeowners — the very same personality types that seize HOA's to feed their strange inner need to control the lives of others — from bullying other property owners and generating no end of expense and ill-will. And because they have a slush fund in the form of a non-profit entity that owns some of the local properties that it holds out for rent, they use their time, organization, and money to intimidate anyone who doesn't kow-tow to their arbitrary, unenforceable "design guidelines." I myself had to fight these people myself for the right to build my own home on my own, completely unrestricted land, a fight that cost me thousands of dollars and an appeal all the way to the Austin City Council back in 2006. Even after I won a unanimous Council vote to build my home just as designed, these ACC-busybody-control-freak types didn't stop — they continued with petitions, flyers, and letters to the City Council, and even kept watch over my construction with drive-bys and unauthorized entries onto my site. To this day, they continue these efforts in the neighborhood, going all-out to prevent my long-time next door neighbor from building her own dream home, though yet again failing and doing nothing more than generating ill-will.

I have a theory that 5-10% of all people are willing, if given the slightest chance, to assert control over the remaining 90-95%. That small but significant percentage of people creates no end of conflict and pain in neighborhoods of all kinds, but particularly in HOA's, and even more particularly in HOA's with ACC's. It is that legal sanction and haven for such people that the "buyer beware" rule does not sufficiently account for. The law gives these people an opening to enact their petty cruelties on others.

A small percentage of people, given half a chance, destroy communities and create petty tyrannies. The HOA Industrial Complex ensures that this situation remains the status quo since it protects the powerful, influential law firms and property managers that are the real power behind the petty thrones.
J. Patrick Sutton Cases & Issues Blog