Virginia Condominium & Homeowners Association Lawyer

A comment was recently posted to Mike Inman's article about the limits of Board authority.  The commenter asked:

1. What authority does a Condo or HOA Board have to censor the content of:

(a) a community newsletter?
(b) a community website?
(c) notices posted on a community notice board?

2. What authority does a Board have to prohibit Owners (or other Residents) from puttng notices or flyers (relating to community matters)on or uder doors in the community?

The answers to these questions nicely highlight certain laws that apply to help facilitate communication among members of both Condominium Associations and Property Owners Associations.

1(a). What authority does a Board have to censor the content of a community newsletter?

The question refers to a "community" newsletter. I interpret this to mean an official and authorized publication of an Association. Seen in this light, then the question is equivalent to "Who is authorized to act officially on behalf of an Association?" Generally speaking, the answer to this question is that a Board is authorized to exercise the powers of an Association, except to the extent that the governing documents or a specific statute require approval of a certain percentage of the membership to in order to take some actions.

If the Association is a nonstock corporation, then Virginia Code § 13.1-853 applies. This states:

All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation or in an agreement authorized by § 13.1-852.1.

If the Association is not incorporated, normally the governing documents specify how Association power s are exercised. In the case of a Condominium, Virginia Code § 55-79.73, a section of the Virginia Condominium Act says:

The bylaws shall provide whether or not the unit owners' association shall elect an executive organ. If there is to be such an organ, the bylaws shall specify the powers and responsibilities of the same and the number and terms of its members.

Often, governing documents grant certain powers to a Board in broad and general terms, in addition to some more specific grants of authority. I believe it is likely you would find that the Board of most Associations is authorized, either pursuant to Virginia Code § 13.1-853 or pursuant to a general grant of powers, to control the content of a community newsletter. Almost certainly, I do not believe you will find that individual members have a right to insist that particular information be included in the newsletter.

This technically answers the first question, but it does not mean that an Association can prevent a member from distributing information about the Association's business to other members. In fact, both a Condominium Association and a Property Owners' Association are required by statute to provide a reasonable, effective, and free method, appropriate to the size and nature of the Association, for owners to communicate among themselves and with the Board regarding any matter concerning the Association. For condominiums, the applicable statute is Virginia Code § 55-79.75:1; and for Property Owners' Associations, it is Virginia Code § 55-510.2. So, you must be allowed to communicate, it just does not have to be in the official newsletter.

1(b) and (c). What about the content of a community website or notices posted on a community notice board?

In both of those cases, I believe the same reasoning would apply as applied in the case of an official newsletter. Additionally, note that the community notice board is probably in the common area, so the question of control of the notice board could be influenced by the authority to regulate the use of the common area. However, because the Association must comply with the requirement of the law cited above regarding "reasonable, effective, and free method" of communication, it would seem that owners should be permitted to express opinions about association business either through the newsletter, the bulletin board, or the website, unless there is another means available to meet the Association's obligation under the law.

2. What authority does a Board have to prohibit Owners or other Residents from putting notices or flyers relating to community matters on or under doors in the community?

I am not aware of a general statutory authority, applicable to all common interest communities, that would give a Board authority to prohibit the actions you've described. Therefore, you must consult the governing documents of the particular Association to determine if any specific authority is granted or if some power granted generally is broad enough to encompass authority to prohibit those actions. Note that the front door, particularly of a condominium, might be part of the common area, in which case the ability to regulate the use of the common area likely would include authority to prevent the posting of papers on the door. Also, I would want to check local ordinances to be certain that the local government has not regulated the door-to-door delivery of unsolicited communication. Finally, particularly in a Property Owners' Association, door-to-door delivery likely would require entry onto each owner's private property, and therefore you would need to observe any warnings individual owners may have posted regarding trespassing.

In light of the requirement mentioned in 1(a) above that all Associations provide a reasonable, effective, and free method of communication among the owners, the answer to this final question should be largely academic, unless you live in a small community in which door-to-door delivery would be preferable to whatever method of communication is provided by the Association.
 

I am not sure that the views expressed in this article take into consideration the strong language of Section 55-79.75:1.B of the Virginia Condominium Act: "Except as otherwise provided in the condominium instruments, the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners' association."

This seems to guarantee freedom of speech for condo unit owners.

Thank you for noting that issue. While I agree that the Association cannot require prior approval, I do believe that if the owner will be using a method of communication controlled by or provided by the Association, the Association is entitled to confirm that the material is regarding a "matter concerning the unit owners' association." That material is in fact "matter concerning the unit owners' association" is a predicate not only to the Association's obligation to provide a reasonable, effective, and free method of its communication; but also to the prohibition against the Association requiring prior approval of its dissemination or content.

I recognize that the Association must be careful, when determining that material conerns the Association, that it not use this as a pretext for censoring the material in some way. However, just as owners have the right to communicate, the Association has a right to ensure that it not facilitate or even bear the cost of unsolicited communication that is unrelated to the unit owners' association.

Of course, an Association need not be so formalistic in the practical application of the law. For example, it might provide a community bulletin board on which every owner is invited to post matters concerning the Association, and simply review the board periodically to remove material that does not concern the Association, such as advertisements of vehicles for sale or notices of garage sales. My discussion of the law was intended to highlight those things that an Association must or may not do.