Revising your Rules and Regs? Keep it Simple!

Often associations review their rules when they want to make some change or addition, but it is best to review all the rules at least every 5 years because a few things do change periodically in the make-up and needs of every community.  So here are some guidelines for your review that might prove useful to you:

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Are you thinking about foreclosing on an assessment lien? Think twice

Several years ago the Virginia General Assembly gave community associations the power to foreclose on their assessment liens.  This provided an apparent powerful tool in the collection of delinquent assessments.  I emphasize the word apparent.  First of all, and worst of all, association liens are subordinate to first mortgages and real estate taxes.  In this day in time it is most often the owner with virtually no equity in his property that is also delinquent in his assessments.  The first step in deciding on the use of the foreclosure option is to perform a title search to determine what liens are on the property. That might result in a quick decision to cease all action toward foreclosure because the sale will not yield any dollars for the association.  However, if there is substantial equity you should keep pursuing that option if the balance owed by the homeowner is significant enough to make the investment of costs  (attorney’s fees, advertising the sale, etc.) worthwhile. 

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DUE PROCESS PROCEDURES: KEEPING ORDER IN THE NEIGHBORHOOD

 

It’s a good day to talk to you about due process procedures which are needed when you wish to formally take action on a covenant violation without filing a law suit or possibly suspend services or use of facilities for an owner who is more than 60 days delinquent in the payment of assessments.  

The authority for suspension and levying charges must be included in your governing documents in order to be available to you. That is required by the pertinent statute.  If you do not have those provisions you need to amend your documents to acquire them.  Most of your documents will contain the pertinent language.  If so you still need a formal procedure to follow which details when and in what form an owner will be put on notice, time frames for processing the matter, establishing what body will conduct the hearing (the board or a committee), rules pertaining to evidence and testimony, and other rules to be followed so as to establish some uniformity to the process that every member can rely upon.  Every association’s procedure is not the same and the procedure can be tailored to the needs of each community.  Some associations want those proceedings to be held in a closed session - others do not handle it in that manner. Even if you have a procedure you should review it periodically to insure you are following it and, if not, you should amend or rewrite it.  We are pleased to help you with due process procedures so that your enforcement actions are handled smoothly, fairly and effectively.

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Virginia Supreme Court focuses on authority of Association Board to impose charges or suspensions

Recently in a Fairfax County case involving the Shadowood Condominium Association the Court examined whether or not the board could assess charges against an owner for failing to submit a unit owner status report required by the Association and for violations of rules by the unit owner’s tenants.  It appears that this association’s documents had not adopted the provisions provided in the Virginia Condominium Act authorizing the assessment of charges for rules violations. In fact the Master Deed provides that “no common expense or other sums shall be assessed….other than for the maintenance, repair, replacement or improvement of the general common elements….”

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Satellite Dishes: The Law Remains The Same

With the federally mandated switch from analog to digital signals the interest in satellite dishes has increased. A brief refresher on the Rules is in order. OTARD, the acronym for Over the Air Reception Devices prohibits community associations from enacting restrictions that unreasonably impair the installation, maintenance, or use of antennas used to receive video programming.

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Covenant Compliance By Owner

QUESTION:

 

My deceased husband purchased our home and signed all HOA paperwork. After his death, the entire neighborhood including the Association was informed of his passing. I continued to pay the dues for the upkeep of the common property and gated entrance.

Recently I decided to build a greenhouse on my property. After construction began, the HOA president came to my home and stated that I was in violation of a rule within the book.

 

My question is...I now have the home and deed in my name. With the HOA being aware of a transfer in property...can I be held liable for the broken rule?  I have not signed ANY paperwork and was just given a copy of the covenants.

 

 

 

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KEEPING UP APPEARANCES

 

Most HOA declarations contain covenants which require upkeep of the exterior to a high standard by each owner.  Not all owners follow the requirements. Some ignore this requirement, or hire third rate contractors who do a poor job and take months to finish what they start.  The board if directors needs to find a way to get better quality work done by the homeowners and get it done quickly after starting.

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PET ROLES - BARKING UP THE WRONG TREE

Many of us have faced this issue and it is good to see a strong decision on this topic.

No Pet Policy Does Not Violate State or Federal Fair Housing Acts

Hawn v. Shoreline Towers Phase I Condominium Association, Inc., No. 09-11797, U.S. App. Ct., 11th Cir., Sept. 22, 2009

Covenants Enforcement/Use Restrictions/Federal Law and Legislation: An association board was within its rights to deny a homeowner's request to have a dog, when the homeowner did not provide sufficient documentation of a disability and the association had a no pet policy.

In 2004, Davis Hawn purchased a condominium unit in Shoreline Towers Phase I, located in Pensacola, Fla. When he purchased the unit, there was a sign on the property that read "No Animals Allowed." Hawn was aware of the sign and the community's no pet policy.

 

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For Sale Signs in Yards

QUESTION:

I live in a condominium townhouse and recently placed a “For Sale” sign in my yard. I was notified by the Association Manager that my sign was not allowed and would have to be removed.  She also sent me the “guidelines” for all signs which has all sorts of information about the size of the sign, what it can say, whether it can be hand-painted, etc. When I bought this house I know there were lots of signs that don’t sound like they were alright under the guidelines. Are they serious?

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Is a Due Process hearing mandatory?

Question:

 

My HOA has filed a warrant in debt without any prior notice. I believe that there is a Code section that says something about the HOA having to inform me of their intent to file a lawsuit and give me an audience with the Board of Directors to dispute the matter. I now have a court date and am looking for an attorney.


What area of law should I be looking for my situation and should I consider a counter lawsuit?

 

Answer:

 

I believe the statute that you are thinking of is Virginia Code § 55-513.  This statute concerns the authority of a board of directors to  suspend services in the event of delinquency in the payment of dues   and  impose monetary charges against a member for violation of the declaration or rules and regulations adopted pursuant thereto.  As is most relevant to your question, subsection (B) of the statute says:


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Yard Signs... Innocent Displays or Potential Violations?

Question:

I live in South Riding, VA. Two weeks ago I put up 2 signs in my yard and I was unaware of the HOA rules of not displaying yard signs. Two days later I got a letter in the mail asking that I remove my signs. It said I had 5 days to do so. So I did not take them down immediately, I was going to wait the 5 days before I removed them. Over the next couple days I got a letter in the mail from "The Neighborhood Watch" stating my signs were “Offensive” and I must remove them immediately! The next night a woman drove very fast into my yard almost hitting me with her Yukon and she started screaming foul names and cursing at me. I almost called the cops! I have had others scream things out their car windows. Because of what happened I refuse to take my signs down. I will not be bullied to take down my signs. Needless to say, I received another letter from the HOA requesting that I take my signs down and that I have until the 23rd to do so.

Here is my question... Someone told me that the VA Law is that you have 30 days from the date of their first letter to respond to the HOA requests and they cannot legally do anything to you until then. Is that true? Or, if the fine of $50 is imposed, once I pay the fine can I keep them up?

What started as an innocent display of yard signs has turned into so much more for me. I would really like some input!

Thanks!

Answer:

With regards to your first question as to how long the Association must give you before you have to take your signs down, this is not spelled out in the Virginia Code, but your particular Association's governing documents may indicate a specific number of days by which you must comply. There is nothing I am aware of in the Code to prevent the Association from demanding immediate compliance.

Assuming that you are in violation of your Association's rules or covenants (spite of rude neighbors is not a recognizable defense), then the Association may, if the governing documents allow, begin to levy fines against you. Before this can be done, a violation hearing must be called, for which you must be given 14 days prior notice and the opportunity to provide a defense to your actions. The particulars of this process are detailed in Virginia Code Section 55-513(B) [the comparable section of the Code which applies to condominiums is 55-79.80:2].

If levying fines do not cause you to come into compliance, then the Association might seek an injunction to force you to remove the signs. If the court becomes involved and issues an order for you to take down the signs, then your refusal to comply can lead to more serious consequences, since you would then be violating a court order. It is also important to point out that if you are found to be legally in the wrong on this dispute, you may very well end up paying for the legal bills incurred by the Association on this matter.

Lastly, depending on the wording of your governing documents, the Association may have the authority to enter onto your property to remove the signs and then charge the cost of such removal to you, all without being guilty of trespass.

 

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Political Signs and Community Associations in Virginia

In the midst of this electoral season, perhaps it is especially timely to discuss sign regulation in communities, particularly as it relates to political signs. You may be getting questions or comments about sign regulation in your communities, so we thought it would be a good idea to let you know what goes, and what does not, in community associations with regard to political signs. There are those that will assume that there is no way that community associations can regulate political signs because it violates their right of free speech under the First Amendment to the Constitution. For reasons we will explain, this is not entirely correct in the community association context. 

 

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Interference with use of garage

QUESTION: I own my condominium, I own garage space, I pay condo fees on my garage space and condo. There is a half wall next to my space. The cleaning people hang the elevator rugs over this wall, wet and or dry, and half of the rugs invade my space. If these rugs are folded in half, I find it difficult to get a passenger into my car. Is this my space from floor to ceiling? I have asked them to stop this practice, but management is balking? What should I do???
 

ANSWER: The first question you must answer is whether or not you have exclusive use over the space into which the rugs are hung. You should be able to answer this question by a careful review of your deed, as well as the Condominium Declaration governing your development. In the Declaration, you should find definitions telling you what constitutes the Unit (property you own and to which you have exclusive use), the Limited Common Elements (property reserved for the exclusive use of one or more, but less than all, Owners), and the general Common Elements (which is everything else, and generally speaking is property owned by the Association and as to which all Owners have the right to use).

You should carefully review these documents, concentrating on the definitions that apply to garage space. It seems to me that the more important aspect of the definition is not to determine if this is your space "from floor to ceiling," as you state; rather, you need to determine the parametrical boundaries of your space, that is: How far over to the half-wall does your space run? If it runs to the interior surface of the half-wall, then it would seem your space is being invaded by the practice you've described.

Often, garage spaces are defined as Limited Common Elements and are assigned for the use of a particular Owner, rather than being property actually deeded as part of the Unit. Whether the space is part of your Unit or part of the Limited Common Element assigned solely to you, however, you would have the exclusive right to its use. In either of these cases, you have enforceable rights. In the event that you are unable to obtain the cooperation of the management company or the cleaning service informally, it may be necessary for you to hire legal counsel.

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Declaration of Covenants

QUESTION:   Where would I find the regulations stating that the owner of an upstairs unit must provide a certain amount of carpet or rugs on the bottom floor of their condo? Also, would it be smart to take legal action against the person. I am at a miserable point in my condo and the noise is preventing me from getting sleep. Please tell me what it is I can do and how much it would cost to get the lawyer to write up the letter. Thank you.

ANSWER:  Condominium documents or rules often contain a requirement that hard surfaced floors in units beginning on the second floor be covered to a certain percentage (such as 75 - 85%) by carpet in order to control noise transmission to the unit below. Generally, there are no local ordinances or other laws on this topic of which we are aware. You may need to resort to a private nuisance claim which is a civil suit to be brought against your neighbor. We urge you to get legal counsel to assist you if you have not been successful in gaining the cooperation of your neighbor through a direct conversation. You will likely need to get a noise expert to document the level of noise at various hours which would be normal sleeping time or, at least, normal quiet time....like 10 p.m. to 6 a.m.

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In-Home Businesses

Question:  Can a HOA dictate what a homeowner does inside his home? For example, a restrictive covenant states homeowners cannot conduct any business, commerce or profession in their residence. Doesn't this covenant bump up against privacy rights that are to be enjoyed within one's own home?

Response:  You ask: can an HOA dictate what an owner can do within his own home? But the question really is: can recorded restrictive covenants which prohibit carrying on a business in a residence be enforced? The answer is yes, because it is a recorded covenant. It was a matter of record when the buyer decided to purchase a home in this HOA. He should have known from the title search and/or resale disclosure that there is such a covenant in the recorded declaration. So it is enforceable. It may or may not be considered a reasonable restriction, but covenants of record are not required to be reasonable. HOA Rules must be reasonable.

Michael A. Inman, Esquire

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Imposing Fines

Question:   I'm having difficulty understanding the differences in our Board's ability to impose fines of $50 for a "single offense", loud party, and $10 per day for a "continuing offense", a fence. One association used "remains uncorrected" instead of "continuing offense". Maybe more examples would help.

Response:  That's a good question, and it sounds like you already have the right basic idea.

Condominium associations, under a section of the Condominium Act, are authorized to assess charges against owners for any violation of the condominium instruments or the rules and regulations, and property owners' associations, under the Property Owners' Association Act, are authorized to assess charges for any violation of the declaration or rules and regulations. It is important to note that the applicable instruments or rules and regulations must expressly authorize the association to assess these charges; if the documents are silent on this, the statutes do not provide independent authority.

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Enforcing Governing Documents

QUESTION: I live in a condo community comprised of townhome style units built above single level units. The bylaws clearly prohibit owners or residents from "making or permitting any loud noises that will disturb or annoy the occupants of any of the units." Further, the bylaws stipulate that "owners or residents shall install necessary carpeting or rugs, each with sound reducing padding, which will cover a minimum of 80% of the total floor space of each room and hallway." A fine schedule accompanies these "disturbing noises" rules.

Within the past several months, my next door neighbors have installed hardwood flooring throughout their home, to the point that every movement - including chairs sliding and children running - is heard through the walls and floors (lower-level unit). Additionally, the neighbors constantly use power tools, including drills, hammers and saws, throughout the day (before 8 am on weekends and after midnight on weekdays). I have complained to the Board and management company, and the neighbor reluctantly agreed to purchase rugs in the coming months. Although fines are associated with these violations, the management company believes that enforcement of the bylaws is limited (and has indicated that we may be limited to removing community rights, such as parking, to address violations.)

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Interpreting Association Documents

QUESTION:  How much leeway is given an HOA board when interpreting very vague wording in their existing covenants. For example, if the covenants say that yards must be kept in a "neat and tidy manner" with no additional explanation anywhere in the remaining covenants, how specific can requests to homeowners be when the covenant is so loosely open to interpretation? Can HOA boards then define "neat and tidy manner" to include an absence of all toys, or stipulate a maximum height of grass (within reason) or approve/not approve the color of deck? On whose side does the law generally rule- HOA or homeowner?

RESPONSE: 

You are right that "neat and tidy" is somewhat ambiguous as to its directive to "keep it clean". Ambiguity in restrictions or rules generally goes in favor of the homeowner in that the courts have generally ruled that if a restriction on the use of real estate is not clear, then the law should, as it has for centuries, default to the free use of one's property. The association board can attempt to create reasonable rules giving more detail to the covenant, but should be cautioned not to go too far in its attempt to regulate. The concepts of regulating the height of grass or the colors of paint or stain would not fall under "net and tidy", as opposed to "no toys in the front yard when not in use."

 Mike Inman

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Architectural Guidelines

Q.        Our HOA board is trying to get its arms around architectural controls and standards. Our Declaration says that we can require homeowners to have any exterior modifications approved by the architectural standards committee. We do not have any architectural guidelines to go by so each application is looked at without reference to any particular standard, although past committee members have tried to be consistent. This seems like the wrong way to go about it. In fact, some of the fence applications would not be necessary if we just had some drawings showing what fence styles were automatically approved. Is that permitted? What suggestions do you have for getting some uniformity and more efficiency in our architectural regulation?

A.        Most recorded covenants for associations require the members to seek pre-approval from the association before making any changes to the exterior appearance of the property. This is generally done through an architectural standards committee appointed by the Board of Directors. Because of the creativity of homeowners, architectural committees are frequently confronted with applications which request approval for changes for which there are no specific written standards or guidelines. Often members rightfully complain that there are no written standards to guide the board and, in those cases, the homeowners will sometimes question the integrity of the process and allege that the decision in his or her case was arbitrary. The Virginia Supreme Court has held that as long as the committee acts consistently and fairly, it is empowered to make decisions based on reasonable criteria (whether in the covenants, guidelines or just consistent with a uniform scheme of development established within the community). 

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Satellite Dishes

Q.        We are having a problem that we are not quite sure how to address concerning the installation of satellite dishes. Some owners are putting them on the front part of their roofs and other places which are unsightly.  We are a homeowners’ association of about 200 homes and want to make sure we have the authority to control the installation of satellite dishes. Can you give us some guidance?

A.        Satellite dishes have long been a source of contention and confusion in homeowners’ associations and condominiums. Prior to 1996 many associations did not allow satellite dishes of any type unless they were part of a common system owned by the homeowners’ association. This was also true for most condominiums. However, in 1996 the FCC (Federal Communication Commission) passed regulations that require associations to allow satellite dishes in HOAs and in condominiums under certain circumstances.

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Displaying the Flag

Q.        I have heard that Congress passed a law about the display of the American Flag that impacts homeowners associations. Does this new law override the association's rules about flags?

A.        It is a fact that there is a new federal law concerning the right to display the American Flag which impacts all community associations; however, this law does not extend to other flags and, further, the new law does not negate the association’s ability to create rules regarding the display of the American Flag.

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Covenant Enforcement

Q.        I am a homeowner in an HOA that recently emerged developer control. Some of the homeowners have added fences, above ground pools and large sheds without getting approval from the Association.  Many of these changes do not appear to meet the standards that I was told were part of our documents. The Association says it has little or no authority to enforce the rules. How do I get the Board and the management company to enforce the rules?

A. The first step is to determine exactly what the architectural guidelines are and what powers the Association has to enforce the rules. Usually an Association's declaration establishes a committee and grants it powers and duties of the Board of Directors. The first place to look for the powers of a committee is in the policy resolution passed by the Board of Directors. Generally, this will be the procedure your committee should follow.

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Foreclosure

Q. Our association has two owners who failed to pay a $3,500.00 special assessment. Fortunately, we recorded liens against all owners. Everyone was given 90 days to come up with the funds. These folks haven't even contacted us or responded to our letters. I have heard that we can foreclose on our lien. What is involved in this process? Can the association bid at the sale?

A. This is a great question because there are clear rights now in the Virginia statutes regarding foreclosure on liens for assessments; however, exercising those rights requires some serious homework before "pushing the button to launch."

Basically, foreclosure on an assessment lien upon a default by the unit owner is a process very similar to a foreclosure on a deed of trust held by a mortgage lender. The "executive summary" version of the process is that the owner is notified that the foreclosure is imminent and given a final date for payment which is not less than 60 days from the date notice is given. If payment in full is not received (or other arrangements satisfactory to the board are not made), then a sale date is established and advertisement in the newspaper is initiated. All junior lienholders holding notes must also be notified so they have a chance to bid at the sale to protect their interests.

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Architectural Standards

Q: Our six year old association is having some problems with compliance by homeowners who ignore the notices from the architectural standards committee about the condition of their property or additions to the yard area and fences. I am fairly new to the neighborhood and to the board of directors. Recently I told the other board members that I didn't receive anything as a new member of the community concerning the expectations, rules or guidelines about this topic. We agreed it was a problem, but no one is doing anything about it. Maybe if you will give us some suggestions we can overcome our inertia. What steps should we take?

A: It sounds like you are in a homeowners association of single family homes that is not professionally managed and may not be communicating well with the homeowners - especially new members of the association. Good initial communication on architectural standards is essential to successful enforcement and voluntary compliance. It is pretty basic that if one doesn't know there are rules, one has a good chance of violating at least one of them.

Most modern Declarations of Covenants for subdivisions contain a few restrictions on exterior changes, but many times these are somewhat vague and require refinement by the board of directors. There is generally authority granted to the board to create architectural guidelines which enhance, and do not conflict with, the recorded covenants. Where such authority is not granted, an amendment by the homeowners may be in order. The documents provided and recorded by the developer often are not tailored to each individual community to the degree necessary to provide a good foundation for covenant enforcement after the subdivision is built out. For that reason, we encourage all communities, especially new communities, to review their declarations, rules and architectural guidelines to identify areas needing modification, deletion or improvement. Some older communities will find that a review every five years will result in discovery of a number of items which need to be changed or deleted.

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Practical Approaches to Voluntary Compliance*

*Educate and notify. Encourage residents to comply by educating them about the rules and by giving sufficient notice of the effective date of each rule.

*Review rules periodically. Review your rules from time to time, and eliminate or amend them if and when circumstances change.

*Act promptly.Once you're aware that a resident isn't complying with a rule, take action as soon as possible. Failing to act promptly may result in a loss of confidence in the Association for some residents or breed an air of permissiveness. Also, the Association may lose its right to take action later if violations are allowed to go on too long.

*Be reasonable with rules and consequences. The rule itself and the consequences for violation must be reasonable - in the opinion of both the community and the courts. Make sure the consequences fit the situation. Don't use a sledge hammer when a fly swatter will do.

*Give residents ample opportunity to comply. Allow reasonable time to fix the conduct or condition depending on the circumstances.

*Provide clear information and guidelines on the rule. The rule must clearly state, in terms understandable to the resident, the behavior that is expected.

*Be consistent and uniform. Rules must be applied uniformly and consistently. In other words, the rule must be applied the same way with all residents under the same set of facts.

*Exceptions can be justified in some cases. You must have some flexibility and it will not void your rule.

*The author has excerpted much of the above information from a CAI 2002 publication "Reinventing the Rules."

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Sheds and Fences

Question:I live in a community of 92 townhomes which contains some very small and odd shaped lots. Many homeowners have storage problems. The declaration of covenants prohibits sheds, but our board is discussing allowing small ones. Can this be done? There is also a fence problem - fences are not prohibited but are regulated by the Architectural Standards Committee in accordance with the developer's Architectural Guidelines. A number of fences not conforming to the rules have been put up without action by the ASC - what can be done about removing them?

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