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Community and Q&A

Can HOA make me use replacement windows that don’t meet current code?

Joseph Burke | Posted in Building Code Questions on

I recently replaced all windows in my condo (22). I thought that I had HOA approval, but I never thought to tell the HOA that I was getting energy efficient windows. (U-Factor of 0.41, SGC of 0.27). These have a greenish tint. My HOA wants me to replace them again with clear glass as they green tint is not in keeping with the community.

I don’t think that I can replace with clear glass and meet current building code (California). Especially since I had to use aluminum frames instead of vinyl to meet the HOA requirements for frames that match the community.

I assume that California does not require me to meet current code. However, can my HOA prevent me from using windows that do meet current code?

Thank you very much for any help or advice!

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Replies

  1. John Clark | | #1

    What do your CC&R's (Conditions, Covenants and Restrictions) say?

  2. Stephen Sheehy | | #2

    Look at your condo documents. Are the windows included in common area?
    Did the HOA give you specific permission to install these windows? Do the condo docs address the issue?
    This sounds like a legal issue. I'd speak to a lawyer. I doubt that meeting code or not will make any difference. U-.41 wouldn't be considered energy efficient where I live(Maine) but what is your climate zone?

  3. Joseph Burke | | #3

    I am Southern California. Climate Zone appears to be 3.

    I will track down the CC&R's, but I presume they will say that the replacements must be similar to the existing. In selecting our replacements we only considered the frames, and we went to great lengths to make sure that the frames matched. It never crossed our mind that the green tint would matter, unfortunately.

  4. Stephen Sheehy | | #4

    I assume the condo docs require notice and prior approval, but maybe not. In any event, you were obligated to follow the docs. If they say "similar" you may be OK.
    How many units in the complex? Are you a stand alone building?
    Why replace the windows in the first place?

  5. Joseph Burke | | #5

    100 units, not standalone.

    The previous windows were 30 years old, single pane. On several I could tap the glass lightly and see outside between the glass and the frame. Half of the locks had fallen off. Our bedroom was routinely over 95 degrees in the summer.

    Replacing was necessary. We decided to go energy efficient as it was only a small up-charge and we figured it would keep our bedroom cool and we'd be good environmentalists. Clearly in hindsight I would have gone clear glass. I'm just trying to find a way to avoid a big financial hit now.

  6. Nate G | | #6

    FYI, U-0.41 is not exactly considered energy-efficient anymore, and far superior products are not at all exotic. You can buy U-0.29 0.2 SHGC windows at the Home Depot in my neck of the woods, which are themselves considered at best middle-of-the-road by the the energy conscious.

  7. Stephen Sheehy | | #7

    So if you are in a large building, don't the condo docs define common areas? Typically, windows are the responsibility of the condo association, not the unit owner.
    As I said earlier, the documents should control. I'd be stunned if they didn't at least require you to submit plans and specifications before doing anything that could impact the outside appearance. If you just replaced them without complying with the condo docs, you are probably screwed. I hope I'm wrong.

    What has the association said exactly?

  8. David Meiland | | #8

    Seems like the HOA should plan for the future, and the inevitability of other window replacements. Surely other folks have 95-degree bedrooms, failing windows, and will want low-e glass. Maybe you're the first but far from the last.

  9. John Clark | | #9

    Joseph,

    Some CCR's are very broad. For example I also live in a townhome (circa 2000) and my CCR's just state that I'm responsible for the window maintenance (aside from painting). There's no verbiage stating that the window replacement must be of the same design (i.e. double hung) and glazing as the original or that conferring with the HOA is required prior to replacement.

    Let us know what happens as I'm curious to hear about any resolution.

  10. GBA Editor
    Martin Holladay | | #10

    Assuming that the people who serve on the board are reasonable human beings, not nut cases, I think that David Meiland's argument in Comment #8 is the one to use.

    It's not as if this association can assume that the windows will be single-glazed clear glass for all eternity. At some point -- when? -- it will be necessary to begin the transition to the 21st century.

  11. Stephen Sheehy | | #11

    Martin- While certainly the HOA should consider replacing all the windows, I see at least two problems.
    First, the windows Joseph installed may not be the choice of the HOA and he still might need to replace the ones he installed, especially given that he used aluminum frames.
    Second, replacing all the windows is an expensive proposition and many unit owners either don't want to spend the money or don't have it.

    The lesson for condo owners is that they must get the OK, in writing, from the HOA before doing anything that changes the appearance of any common area. Even if the controlling documents are not specific, custom or applicable state law almost certainly requires prior approval for something like window replacement.

  12. GBA Editor
    Martin Holladay | | #12

    Stephen,
    I don't doubt that you are providing good advice to homeowners who live under the constraints of an HOA. (To those of us who don't, this tale is a warning. I thank my lucky stars that I don't live under such constraints.)

    You noted that "replacing all the windows is an expensive proposition." Of course it is. That's why I spoke of a transition. I see no technical reason why the transition couldn't take decades. Why not let each homeowner decide when to replace their windows?

    The downside -- gasp! -- is that for a few decades, people who walk their dogs might suffer the indignity of walking past two homes and noticing that the glazing on House A has a slightly different tint than the glazing on House B. The citizens of this community are lucky to have an alert board that is able to protect the dog walkers of their community from this aesthetic affront.

  13. Joseph Burke | | #13

    Undeniably we were incredibly naive and/or foolish for not getting the board's approval on the tint. We did get the approval on the frames. We chose the aluminum frames solely for the reason that the board had approved our neighbor with those frames, and any vinyl frames would not match as well.

    As far as the tint, our proposal submitted to the board did have the tint listed, but it is in industry jargon that they did not understand and, per our thought that no one cared about tint, we never mentioned it. Unfortunately, despite submitting the detailed proposal, the approval came back with an extremely generic "your request is approved on the condition that everything matches the existing style." We commented to each other that it was ridiculous as the existing style would mean peeling gray film tint.

    My argument to the board is that ignoring all the technological advances since these were built in the mid-80s (and built cheaply so doubtful they used state of the art technology) is rooting us in the past. Like David said, we may be the first who wanted energy efficient windows, but we won't be the last.

    My initial question still stands though: can the HOA require me to use windows that would not meet California's standards for new construction. I realize that I am doing a replacement and not new, so the standards are less, but if I'm going to this significant expense, I want windows that are up to code. I will consult a lawyer on this question, but I was hoping someone would know if I have a leg to stand on with that argument.

    Thanks for the feedback!

  14. John Clark | | #14

    Joseph

    You commented...."existing style would mean peeling gray film tint.".

    Are your windows tinted with plastic film like automotive tint? If so, are you sure the film is an acceptable method in which to meet code?

  15. Stephen Sheehy | | #15

    Joseph-I never practiced in CA, so my advice to consult a local lawyer stands. One legal issue is whether in CA, window replacement triggers any requirement to comply with new standards. I doubt it, but I could be wrong. Another issue is whether you could have installed any glass that would both match existing and also comply with new energy standards, assuming they even apply.

    If your proposal was approved, you may be OK, but maybe not. It really depends on the wording of the condo docs, the wording of the proposal you sent to the association and the wording of their approval. Moreover, matching "the existing style" might not be construed as requiring matching glass, but just general style, e.g. you can't replace double hung with casements. The association could have said something more specific, but didn't. That could be a point in your favor.

    You probably want to speak to a lawyer who does condo litigation, as opposed to a typical real estate lawyer who just handles transactions. A competent lawyer should be able to spend an hour or two reviewing the documents and the facts and then advise you as to whether you are probably OK or not. Of course, in the event of a protracted dispute, you'll need to decide whether the cost involved is worth it, given a potentially uncertain outcome.

    Once you have a sense of whether you have a leg to stand on or not, you might just wait and see what the association does.

    Along with Martin, I'm glad I don't need to deal with a HOA. Some of them are reasonable, some aren't.

  16. Joseph Burke | | #16

    Chris: The ones we replaced had plastic film like automotive tint, and that apparently was acceptable to the HOA at the time the previous owner installed it. The new ones have the low-e built into the glass and look far better than the old ones, IMO.

    Stephen: we could not install any glass that would match both existing and comply with new energy standards. Unfortunately, replacement glass does not require meeting current standards. My hope (longshot perhaps) is that the HOA cannot set a standard that prevents me from meeting current code if I wanted to, despite not being required to.

  17. Nate G | | #17

    Hold on a sec. Low-E glass doesn't necessarily have a tint to it. There are plenty of energy-efficient windows with low-E coatings on them that look about as clear as "clear glass."

  18. John Clark | | #18

    Joseph,

    So the units all have tinted glass?

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