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:
B. The board of directors shall also have the power, to the extent the declaration or rules and regulations duly adopted pursuant thereto expressly so provide, to (i) suspend a member's right to use facilities or services, including utility services, provided directly through the association for nonpayment of assessments which are more than 60 days past due, to the extent that access to the lot through the common areas is not precluded and provided that such suspension shall not endanger the health, safety, or property of any owner, tenant, or occupant and (ii) assess charges against any member for any violation of the declaration or rules and regulations for which the member or his family members, tenants, guests, or other invitees are responsible.
Before any such charges or suspension may be imposed, the member shall be given an opportunity to be heard and to be represented by counsel before the board of directors or other tribunal specified in the documents. Notice of a hearing, including the charges or other sanctions that may be imposed, shall be hand delivered or mailed by registered or certified mail, return receipt requested, to the member at the address of record with the association at least fourteen days prior to the hearing.
We often refer to hearings held under this statute as "due-process hearings," because the member is entitled to notice and an opportunity to appear and present evidence before any charges can be imposed.
Note that an association can only impose charges under § 55-513 "to the extent the declaration or rules and regulations duly adopted pursuant thereto expressly so provide." It may be the case for your association that the declaration or rules and regulations do not give the board authority to impose charges for violations. More importantly, there is nothing that requires a board to hold a due-process hearing an impose charges, instead of or as a prerequisite to filing a lawsuit. If, for example, a member is engaging in conduct that is a legal nuisance and perhaps dangerous on their lot, then there would be very good reason for the board to decide to go to court immediately to seek an injunction requiring the member to cease the conduct.
In any event, based on your description, it sounds like the board either cannot, or has simply chosen not to, conduct a due process hearing. Unless your declaration contains a provision requiring some sort of alternative dispute resolution, such as arbitration or mediation, as a prerequisite to filing suit (which is unusual and would be unlikely), then there is nothing wrong with the board's action.
As far as what kind of attorney to look for, unless your case involves facts and conduct that relate uniquely to some other specialized area of the law (just by example, say the association claims you are engaging in toxic dumping on your lot in violation of Federal environmental protection laws), you likely want someone with a significant practice in the area of community association law. I would recommend that you speak with a community association lawyer, who should tell you if your case for some reason is outside his or her area of expertise.