Approval by Silence: When a Review Committee Misses Its Deadline
An owner submits plans and hears nothing. Statutes rarely supply a fixed number of days themselves, but they require the association's own procedure to state one, which is what turns a missed deadline into an approval the association cannot take back.
The rule in short
Where the governing documents require approval before an owner changes a separate interest or the common area, statutes commonly require a fair, reasonable and expeditious procedure with prompt deadlines, a stated maximum response time, a decision made in good faith that is not unreasonable, arbitrary or capricious, a written decision, and an explanation plus a reconsideration route if the request is denied. Deemed approval clauses in the documents are enforced according to their terms.
The pattern is familiar. An owner submits drawings for a fence, a window replacement or a patio cover, hears nothing for two months, sends a follow-up, hears nothing again, and eventually calls a contractor. Whether that owner is now within their rights or about to be sued depends on a single question: where does the deadline come from.
The statutory duty is a procedure, not a number
A representative statute applies where the governing documents require association approval before a member makes a physical change to a separate interest or the common area. It directs the association to provide a fair, reasonable and expeditious procedure for making its decision, to include that procedure in the governing documents, to provide for prompt deadlines, and to state the maximum time for response to an application or to a request for reconsideration by the board.
Read carefully, the statute does not itself set a number of days. It requires the association to have one and to publish it. That design is deliberate: communities differ, and a fixed statutory period would fit some badly. The consequence is that the operative deadline is almost always in the declaration or the architectural guidelines rather than in the code.
The same statute adds substantive duties. A decision must be made in good faith and may not be unreasonable, arbitrary or capricious. It may not violate any governing provision of law, including fair housing law, a building code or other land use or public safety law. And it must be in writing.
Why the written decision matters more than the answer
If a proposed change is disapproved, the written decision must include an explanation of why it was disapproved and a description of the procedure for reconsideration by the board. A denial that says only that the application does not meet the guidelines fails that requirement, and the failure is independently actionable.
Reconsideration is a real step, not a formality. The owner is entitled to reconsideration by the board at an open meeting, unless the original decision was made by the board itself or by a body with the same membership at a meeting that already satisfied the open meeting rules. That exception is why some small associations have no second look available at all.
Associations also owe an annual notice describing the types of changes that require approval and enclosing a copy of the review procedure. An association that has not sent that notice is in a weak position to insist on strict compliance with a procedure the owner was never given.
Deemed approval clauses almost always run from receipt of a complete submission. A committee that responds within the period asking for a site plan, a materials list or a survey has usually stopped the clock, and it restarts when the missing item arrives. Owners relying on silence should therefore be able to show what was submitted and when, and that nothing further was requested. A dated transmittal with a delivery receipt is worth more than a recollection of a conversation.
| Source of the deadline | Effect of silence | What the owner must prove |
|---|---|---|
| Declaration states silence is approval | Approved by its terms | Complete submission and expiry of the period |
| Guidelines state a maximum response time only | Breach of the procedure, not automatic approval | Delay, and harm or unreasonableness |
| Statute requires prompt deadlines, documents state none | Association is out of compliance with the statute | Absence of a published procedure |
| Committee requested more information in time | Clock stopped | Nothing; the request restarts the period |
| Denial issued without written reasons | Defective denial | The written decision as issued |
The scope of an approval obtained by silence
A deemed approval is only as wide as the application that produced it. It approves the plans submitted, at the location shown, in the materials specified. It does not approve a larger structure, a different finish or a second phase that was described only in conversation.
It also does not displace anything outside the association's authority. A deemed approval is not a building permit, does not waive a setback in the zoning code, and does not authorize work on common area an owner has no right to alter. Owners who treat a committee's silence as general permission frequently run into a municipal stop-work order that the association had nothing to do with.
Nor does it survive a material change of plans. Where an owner amends the design after the period runs, the amended design is a new application starting a new period, and building the amended version generally forfeits the benefit of the original silence.
What the committee is allowed to consider
Review authority is not general. One statute limits the authority of an association or its architectural committee to review and approve plans for the location, size, type or appearance of a structure, or to enforce external appearance standards, to the extent that authority is specifically stated or reasonably inferred in the declaration or in published guidelines authorized by the declaration. It also requires the association to apply and enforce those standards reasonably and equitably.
That limit answers a common dispute. A committee that denies an application on a ground appearing nowhere in the recorded documents or the published guidelines has exceeded its authority, and the denial can be attacked without arguing about taste. The hierarchy that produces this result is described in the article on why the declaration binds a buyer who never signed it.
Composition rules exist as well. One state requires that membership on a design review or architectural committee include at least one director, who serves as chairperson, and imposes specific requirements where a security deposit is collected for new construction, including that the deposit be held in a trust account and that a final design approval meeting be held with the member entitled to attend.
The sequence that preserves the argument
Send the application in a form that can be dated and traced, with every item the guidelines list. If the period passes, send a written notice stating the submission date, quoting the deadline provision, and asking for the written decision the statute requires. Give a short further period.
If the documents supply a deemed approval, that notice is what converts silence into a provable approval. If they do not, the notice builds the record for a claim that the procedure was not fair, reasonable and expeditious. Either way it costs nothing and changes the posture entirely.
Owners should also expect the association to respond by opening an enforcement file if work has started. That process has its own protections, described in the article on the hearing an owner gets before a fine, and the committee's file, minutes and prior approvals are usually obtainable under the rules in the article on inspecting association records. Where the underlying restriction itself is the problem rather than the committee's handling of it, the route is the one in the article on amending the declaration and the bylaws.
Points to carry away
- The statutory duty is usually to have a procedure with prompt deadlines and a stated maximum response time.
- A decision must be in writing, and a denial must explain why and describe the reconsideration procedure.
- Deemed approval on silence generally comes from the governing documents rather than from the statute.
- A complete application is what starts the clock, so a request for more information can reset it.
- A denial that violates a building code, land use law or a protected right is invalid regardless of the documents.
Questions readers ask
Is it safe to start work once the deadline passes?
Only where the documents say silence is approval and the application was complete. Statutes that require a procedure with deadlines do not themselves declare that silence approves; they make the association's failure a breach and give the owner a remedy. Starting construction on a deemed approval that turns out not to exist can lead to an order to remove the work at the owner's expense. The safer sequence is a written notice that the deadline has passed, a short further period, and only then a decision to proceed.
Can the committee change its mind after approving?
Rarely, and not simply because a new committee dislikes the design. An approval on which an owner has relied by spending money is generally protected, and revocation after substantial reliance invites an estoppel argument. What a committee can do is enforce the conditions it attached: an approval limited to a stated color, material or dimension does not authorize a different build. Owners who deviate from the approved plans are usually treated as never having been approved at all.
Does a committee have to say yes to something the neighbors already have?
Not automatically, but a pattern of approvals is powerful evidence. Statutes require decisions to be made in good faith and not to be unreasonable, arbitrary or capricious, and approving five identical fences before denying the sixth is difficult to defend on that standard. The association's answer is usually that the guidelines changed between the approvals, which shifts the question to when the change was adopted and whether it was properly noticed to members.
Sources
- California Civil Code § 4765 — Association approval of physical changesThe requirement of a fair, reasonable and expeditious procedure with prompt deadlines and a stated maximum response time.
- Florida Statutes § 720.3035 — Architectural control covenantsLimits review authority to what the declaration or published guidelines state or reasonably imply.
- Arizona Revised Statutes § 33-1817 — Declaration amendment; design and architectural committeesCommittee composition requirements and the final design approval meeting for new construction.
- Virginia Code § 55.1-1819 — Adoption and enforcement of rulesThe board's power to adopt rules and the members' power to repeal them by vote.
- California Civil Code § 5975 — Enforcement of governing documentsEnforceability of the covenants and the fee award to the prevailing party in an enforcement action.
- California Civil Code § 4250 — Contents of the declarationWhere the restrictions that trigger architectural review are recorded.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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