VIRGINIA ATTORNEY GENERAL ISSUES OPINION ON

The Virginia Attorney General can issue opinions concerning statutory interpretation if requested to do so by an array of government officials from the Governor to a member of the Senate or House of Delegates to a local sheriff. These opinions are not binding on a judge but are persuasive when considering the law affecting a given case. In this case a member of the General Assembly asked: Is it legal under the Virginia Property Owners' Association Act (the "Act") for an association ("POA") to deactivate a member's barcode decal if he or she is more than sixty days late paying an assessment. Deactivation of the barcode decal will restrict, but not completely deny, entry in to the neighborhood due to the existence of two access points, one manned and one not.

In this POA the board adopted a resolution, pursuant to statutory authority, providing that after giving a member an opportunity for a hearing, the board of directors has the right to suspend a member's and his or her tenants' or family's use of the barcode decal in the event of nonpayment of assessments, fees, or fines owed to the POA where payment is more than sixty days past due. However, such suspension is not proper if it will “endanger the health, safety or property” of that homeowner. The barcode decal can be used to gain access at the manned main gate at the front of the subdivision and is required to use the unmanned gate to enter at the back of the subdivision. Without the barcode decal, an owner can still access his or her home by using the manned main gate, but for those owners whose homes are closer to the unmanned back gate, this access may be less convenient. The location of the back gate is approximately five miles from the main gate when driving around the subdivision and is approximately three miles from the main gate when driving through the subdivision. The streets within the subdivision are common area private roads.

The Attorney General’s view of the issue in this case is whether denial of access to the back gate endangers[s]…health, safety, or property." There could be situations where an owner needs to return to his or her property for an emergency affecting health, safety, or property. If the property is close to the back gate but distance from the main gate, and if the owner approaches from that direction, then denial of access through the back gate could possibly endanger health, safety, or property in violation of the Act.

For failure to pay a special assessment, the additional question under Section 55-514, was whether denial of access to the back gate denies the owner "direct" access to his or her lot. There are certain lots that are a significant distance from the main gate but close to the back gate, and depending on the direction from which the owner arrives, "direct" access might be only through the back gate, while for other lots, "direct" access may be through the main gate. For certain lots, deactivating the barcode and hereby denying use of the back gate could thus deny the owner "direct" access to his or her property in violation of the Act.

The Attorney General concluded that the resolution may not legally be applied against any owner if deactivation of the owner's bar code for nonpayment of a regular assessment would endanger health, safety, or property; or if deactivation for nonpayment of a special assessment under Section 55-514 would deny the owner "direct" access to his or her property through the roads of the development which are common areas.