Virginia Condominium & Homeowners Association Lawyer

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

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.

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.)

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

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). 

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.

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.

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.

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.

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.

• 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.”

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?