We have observed that there are some association boards which are not aware of a distinction between state law requirements and necessary internal procedures for complaints. In this article we distinguish between the process to be followed for a complaint concerning a violation of state law or regulations vs. a complaint about the actions of a unit owner or other resident of the association which violates the declaration, bylaws or rules and regulations.
There is a state statute that requires that all associations have a procedure for filing complaints about state law issues, such as failure of the board to have a reserve study or otherwise not following Virginia law. If there is no resolution of the complaint at the association board level to the satisfaction of the complaining party the “adverse decision” of the board can be appealed to the Ombudsman who is an attorney employed by the State agency that oversees compliance with the law by associations.
Separate from the procedure mandated by the State every association should have Process Procedures for the filing of a complaint by a unit owner concerning violations of the requirements of the association’s governing documents, such as a vehicle regularly parked in an incorrect locations, chronic smoking in a prohibited area by a resident, or frequent improper use of common areas by a unit owner. These are not matters that can be or should be a subject of the state law complaint because there is no state law governing such actions.
Every association should create a due process procedure which provides the steps to be taken in making a formal complaint and having that complaint processed in an orderly and timely manner. Some complaints may be made verbally to officers of the association who can possibly resolve the matter before there is a need for a written complaint. In the event such a resolution is not achieved then the next step is to complete the Complaint Form that is part of the Due Process Procedures. The Procedures document gives structure to the complaint resolution process. The process involves a hearing on the matter before the board of directors in which the parties involved will present their positions and provide documents and witnesses as needed. At the conclusion of the process the board has the authority to impose monetary penalties and require corrective action depending on the subject matter of the complaint. Such penalties and corrective actions are governed by statute.
In the event you need assistance with creating the documents required to satisfy these needed procedures we would be pleased to assist.
We take this opportunity to express our gratitude for having the opportunity to provide counsel to many Virginia associations and to wish you an enjoyable holiday season and a happy New Year. Please visit us at www.vahoalaw.com.