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What do we do when the developer still runs our HOA architectural committee after turnover?

By OurHOA · General information · Revised

When the developer keeps architectural review after the owners take over the HOA board: where that power comes from, TX, FL and CO limits, and how to negotiate handover.

Part of the HOA board handbook: running the board.

The short answer

Turnover of the board and turnover of design review are often two separate events. Many declarations let the developer, called the declarant, keep approving house plans and exterior changes until the last lot sells, because the builder wants control over what goes up next to the homes it still has to sell. That can be legitimate. Your job is to find the exact clause that gives the declarant this power, find out when it ends, and then negotiate an arrangement for the gap: usually the declarant keeps reviewing new construction on its own lots and builder lots, and the owner committee takes over modifications to homes owners already live in. Get the deal in writing and record it if it changes who holds a recorded right. Rules vary by state and by your governing documents, and this guide is general education, not legal advice. A short review by an attorney who reads your declaration is worth it here.

Find where the power comes from

Pull the recorded declaration, every supplemental declaration and amendment, and any recorded assignment of declarant rights. Search them for 'architectural', 'design review', 'ARC', 'development period' and 'declarant rights'. You are looking for four answers. Who holds the review power: the declarant personally, a committee the declarant appoints, or the association with a declarant veto. What it covers: new homes only, or every exterior change in the community. When it ends: a date, a percentage of lots sold, the last sale, or a written release. And whether the declarant can assign it, since a developer that sold its remaining lots to a production builder may have handed the right to that builder. Then ask the declarant in writing for its current design guidelines, its list of pending applications, and the name of the person who actually signs approvals. A surprising number of boards discover that the 'committee' is one sales manager answering email.

What Texas, Florida and Colorado say

Texas defines a development period as the time stated in the declaration during which the declarant keeps the right to develop, build and market the subdivision or change its size and makeup (Tex. Prop. Code 209.002(4-a)). The owner protections for architectural review in 209.00505 apply only to associations with more than 40 lots, and they stay switched off during a development period, while the declarant appoints a majority of the reviewers, and while it can veto or change their decisions (209.00505(b)). Once all of those end, a denied owner gets a written notice explaining the denial and the right to a board hearing within 30 days (209.00505(d) and (e)). Board members, their spouses and members of their household cannot sit on the committee (209.00506(c)), and the association must ask for volunteers at least 10 days before appointing members (209.00507). Separately, owners must elect at least one-third of the board within 120 days after 75 percent of the lots are conveyed (209.00591(c)). In Florida, owners elect a board majority 3 months after 90 percent of parcels are conveyed, and the developer can still elect one director while it holds at least 5 percent of parcels for sale (Fla. Stat. 720.307(1)(a) and (3)). Any committee can review plans only to the extent the declaration or published guidelines give it that power, and it must apply its standards evenly (720.3035(1)(a)). In Colorado, declarant control ends no later than 60 days after 75 percent of units are conveyed, or 2 years after the declarant's last ordinary sale (C.R.S. 38-33.3-303(5)(a)(I)). The statutory list of special declarant rights in 38-33.3-103(29) does not mention architectural review, and the declaration must state each reserved right and its time limit (38-33.3-205(1)(h)), so read that clause closely.

Split the work instead of fighting over it

The cleanest deal divides applications by type. The declarant keeps review of new homes on lots it or its builders still own, because those plans tie to its marketing and its permits. The association's committee takes everything an existing owner submits: fences, patios, paint, solar, additions, sheds and pools. Both sides use one set of written guidelines, and the declarant agrees to send the association a copy of every new-home approval so the file is complete when the declarant leaves. Ask for three more things. First, a firm end date, such as the earlier of the last lot closing or a calendar date. Second, a seat for one owner on the declarant's review panel in the meantime, even without a vote. Third, delivery of the approved plans and specifications at the end. Colorado already requires the declarant to hand over construction plans and specifications at turnover (38-33.3-303(9)(e)), and a Florida developer's turnover list under 720.307(4) covers permits, warranties and the association's records. Asking for the same thing in a Texas agreement is reasonable.

Wording you can adapt

Start with a letter from the board president, sent after a board vote. Sample: 'The board requests a meeting within 30 days to agree on a transition of architectural review. We propose that the declarant continue to review new construction on lots it or its builders own, that the association's Architectural Review Committee review all applications from other owners starting [date], and that the declarant deliver copies of approved plans and the current design guidelines.' A sample motion once terms are agreed: 'I move that the board approve the Architectural Review Transition Agreement with [declarant] dated [date], appoint [names] to the Architectural Review Committee, and direct the secretary to record the agreement in the county records if counsel advises that recording is needed.' A sample notice to owners: 'Starting [date], send all applications for changes to existing homes to the association's committee at [address]. New construction by the builder is still reviewed by the declarant until [end date].'

A sample timeline

Month 1: the board reads the documents, lists every clause on declarant review, and votes to open talks. Month 2: the president sends the request letter and the board drafts guidelines if none exist. Month 3: one meeting with the declarant, followed by a draft agreement reviewed by the association's attorney. Month 4: the board approves the agreement, asks for committee volunteers with a deadline at least 10 days out, and appoints members at a noticed meeting. Month 5: the committee takes its first owner application, with written decisions logged by date. At the end date: the declarant delivers the plans, the pending-application list and its last approvals, and the board confirms in the minutes that review authority now rests with the association. Colorado associations should keep those approval and denial records with the association's books, since 38-33.3-317(1)(m) lists them among records the association must keep.

Mistakes boards make

The first is assuming the board election ended every declarant right. It ended control of the board, and the review clause may run on a different clock. The second is the opposite: quietly letting the declarant review owner fences years after its last sale because nobody checked the end date. The third is seating two review bodies with no written split, so an owner gets a yes from the builder and a no from the committee for the same patio, and both decisions land in a dispute. The fourth is forgetting the records. When the declarant leaves without delivering approved plans, the association cannot tell whether an existing home matches what was approved, which matters when a violation comes up years later. The fifth, in Texas communities over 40 lots, is appointing directors to the committee once 209.00505 applies. Our guides on setting up an architectural review committee and on developer control and turnover cover the next steps.

Sources

These guides are general education for HOA boards and residents, not legal, tax, or financial advice. Rules vary by state and by your community's governing documents - check with a professional for your situation.

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